To Transfer or Not to Transfer

As I work with companies expanding into the UK, one issue that comes up regularly is whether to transfer the employer social taxes due on equity income (known as employer National Insurance Contributions or NICs) to employees. Employer NICs are due on equity income if the taxable event occurs at a time when there is a market for the company’s shares (typically, when the shares are publicly traded). If due, employer NICs are payable at a rate of currently 13.8% and are uncapped (meaning they are due no matter how much income the employee realizes). This distinguishes the UK from many other countries (e.g., the US or Germany) where social taxes are also due but only up to a certain threshold (or income ceiling). Often the employee has already reached this threshold with her regular salary such that no social taxes are due on equity income.

Because employer NICs in the UK are uncapped, if a company makes significant equity grants to employees in the UK, the employer NICs liability can be crushing. But the UK again distinguishes itself from virtually all countries by allowing the employer to transfer the employer NICs due on income realized from most equity awards to the employee.

How to Pass on Employer NICs

Passing on employer NICs can be done in two different ways: by entering into a joint election with the employee which is a more or less prescribed form that needs to be approved by the UK tax authorities, or by contractual arrangement. The benefit of a joint election is that it makes the employer NICs the legal obligation of the employee (although the employer remains responsible for withholding the tax) whereas, if the employer NICs are merely transferred contractually, the employer remains legally liable for the tax but has a right to be reimbursed for the employer NICs by the employee. This will impact how the company accounts for the employer NICs. Most companies will transfer employer NICs by way of a joint election. The approval process for the joint election is very straightforward and approval is almost perfunctory. However, companies will need to remember that, to ensure the approval remains valid, they have to notify the UK tax authorities of any changes affecting the awards (e.g., amendments made to the plan or award agreements).

Obviously, requiring employees to assume the employer NICs is not very popular with employees, given that their personal tax liability on equity income can already be as high as 47% (comprised of income taxes and employee NICs). Add to that the 13.8% employer NICs and the majority of the equity income will be wiped out by taxes. However, again, the UK has been creative and thought of a way to slightly ease the tax burden for the employee. It allows an employee to deduct the employer NICs from the equity income for purposes of calculating her income tax liability. The following example will show the impact.

Doing the Math

Assume an employee realizes GBP10,000 in equity income and is in the highest UK tax bracket (currently, 45%). This means the employee will have to pay GBP1,380 in employer NICs (13.8% x GPB10,000) and pay GBP200 in employee NICs (2% x GBP10,000). For purposes of calculating her income taxes, the employee can deduct GBP1,380 from the total income, meaning that income tax will be due only on GBP8,620, for an income tax liability of GBP3,879 (45% x GBP8,620). Therefore, the employee’s total tax liability will be GPB5,459 (GBP1,380 + GBP200 + GBP3,879) for an effective tax rate of 54.59%, which is still hefty, but better than 60.8% which would be the tax rate if no deduction was permitted.

So Who is Transferring Employer NICs?

In our experience, a slight majority of US multinationals offering equity awards in the UK will transfer the employer NICs to employees. Among technology companies, the percentage is higher, especially for younger companies where cash flow (to pay for the employer NICs) may be an issue, awards are granted on a broad basis and the stock price has a lot of upward potential. By contrast, more traditional/established companies typically do not transfer the employer NICs, but also often grant equity awards on a more limited basis. Another deciding factor can be the type of award. Companies will transfer employer NICs most often for stock options, because the option income (especially for options with a 10-year term) is unpredictable and can, under ideal circumstances (especially for pre-IPO companies), be very large. On the other hand, companies generally do not transfer employer NICs for ESPPs, because the ESPP income is more predictable and unlikely to reach excessive amounts. RSAs and RSUs fall somewhere in the middle, depending on the amount of shares companies grant and the expected stock price development.

The Bottom Line

In summary, when deciding whether to transfer employer NICs, companies need to balance the impact of the employer NICs on the UK entity’s bottom line against the effect a transfer will have on employee retention and morale in the UK. If you are are a pre-IPO company granting stock options (especially in the tech sector), you can be sure that most of your peer companies are also transferring employer NICs, so the effect on employee retention should be manageable. However, if you are a brick-and-mortar company, most of your competitors are probably not transferring employer NICs so you may want be careful about being an outlier.

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