How FDs can reduce the risk from off-payroll working rules

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The off-payroll working legislation has been a resounding success in the public sector, according to government. And from April 2020, it’s being rolled out to the private sector. Here are the key steps finance teams should take to insulate the business from risks.

The issues

As most AccountingWEB readers will no doubt be aware, in April 2017 the off-payroll working legislation was brought into the public sector, making public body hirers responsible, and not the contractors, for making the IR35 decision.

According to HMRC, the change has brought in £410 million in additional revenues from workers who otherwise would have received most of their remuneration as dividends, saving themselves thousands of pounds a year in income tax and National Insurance.

From April 2020 the legislation will be rolled out to the private sector.

Risk

We believe that to understand how the market reacts to new legislation you must understand where the risk lies. Risk always dictates behaviours. Under this legislation the risk, whether directly or via debt transfer, ultimately lies with the hirer. Clearly, the primary risk is where the hirer decides that an assignment is outside IR35.

A hirer’s gross financial liability for lost tax could be substantial. The combined sum of National Insurance, apprenticeship levy, interest and moderate penalties over a three year period for an average contractor earning £100,000 per annum is well over £100,000. Therefore, most hirers will not be prepared to take the financial risk.

But the risk is not only financial but reputational. There are plenty of businesses and individuals currently making the national news for apparently not paying the correct amount of tax. Many businesses use hundreds, and sometimes thousands of limited company contractors, so the combined liability (including penalties) could easily amount to millions of pounds.

What should you do now?

Judging by what happened in the public sector in 2017, and on the basis of anecdotal evidence in the private sector already, finance teams should consider the following:

  • Make sure your suppliers are on top of all this – find out what their plans are.

  • Work out how many contractors are engaged by your organisation, including directly engaged personal service companies (PSCs), PSCs supplied via staffing companies, and PSCs working via consultancies. Are there business units with off-payroll workers who may not be aware of the impending changes? Try to establish as complete an inventory as possible of how many contractors are working in your organisation and the means by which they are engaged.

  • Consider which PSCs may and may not be inside IR35. Consider finding an adviser who can support you with this exercise. Use of the employment status tool provided by HMRC is strongly recommended but be aware that its determinations do not have statutory effect. While HMRC is likely to give significant weight to a decision arrived at via this tool, it may not always be bound by the decision.

  • Work with suppliers to put in place procedures to ensure PSCs do not move into aggressive tax avoidance schemes.

  • Don’t be pressurised by workers seeking to challenge your decisions. There has been much discussion about workers having a right to challenge determinations and possibly bring claims in circumstances where they are incorrectly assessed. In reality, however, it is unlikely that contractors deemed inside IR35 will have any legal recourse if they disagree with that assessment.

  • Do not create assignments now which will expire after 6 April 2020 – any assignment which straddles that date may, unless pay rates are grossed up, lead to claims because, amongst other things, employers NICs will suddenly have to be deducted leading to a material reduction in gross as well as net pay rates.

  • There may be a number of contractors who are deemed crucial. It might be worth giving them a rate increase to compensate for the additional tax they will have to pay. There were reports of an exodus of contractors from the public sector in 2017 but when the rules apply to the private sector there will be limited alternatives for disgruntled contractors other than to find an organisation prepared to assess them and pay them outside IR35. Most, then, will have to accept the new regime but those with business-critical skills likely will have greater bargaining power.

  • Another option for hirers is to outsource some or all of their contingent work to a company under a service contract sometimes known as a statement of work contract. The legislation then becomes the problem of the service company who would be deemed to be the hirer.

  • Where an end-user receives “contracted out” services (and not labour supply), that service will not be subject to the regime. Effectively, this means that the regime will only apply to entities in a supply chain involving labour supply. While this is good news for users of “genuine” statement of work-style services (in which consultants deliver a pre-scoped piece of work for a fixed price), they will need to be “genuine” – merely labelling something as statement of work will not be sufficient, and the likelihood is that many time-charged based consultancy arrangements will be caught.

Outcomes

After understanding where the risk lies it comes as no surprise that the expectation is that hirers will decide that the majority of assignments will be caught by IR35.

This means post-April 2020 a higher proportion of contractors will be working through compliant PAYE umbrella companies, agency PAYE or professional employment solutions. Under all eventualities, hirers should strive to have greater control over their supply chains to ensure compliance and financial stability.

About Matthew Brown

Matthew Brown

Matthew Brown is the CEO of Giant Group, a provider of umbrella services for employing temporary workers, freelancers, and contractors.

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By IANTO
19th Jul 2019 10:12

What a grossly misleading article -

"Consider which PSCs may and may not be inside IR35. Consider finding an adviser who can support you with this exercise. Use of the employment status tool provided by HMRC is strongly recommended but be aware that its determinations do not have statutory effect. While HMRC is likely to give significant weight to a decision arrived at via this tool, it may not always be bound by the decision."

The CEST (Check Employment Status for Tax) tool has been widely condemned for being out of touch with case law and should not be used under any circumstances. HMRC have already proven with the Alcock case that they are not prepared to stand by an "outside" determination.

"Don’t be pressurised by workers seeking to challenge your decisions. There has been much discussion about workers having a right to challenge determinations and possibly bring claims in circumstances where they are incorrectly assessed. In reality, however, it is unlikely that contractors deemed inside IR35 will have any legal recourse if they disagree with that assessment."

again, a grossly misleading statement. The individual will certainly have the opportunity to challenge the client in the Employment Tribunal. Given that many will still be in contract with a client when such action is taken, then the time limit for lodging a case in the ET will not be breached.
"After understanding where the risk lies it comes as no surprise that the expectation is that hirers will decide that the majority of assignments will be caught by IR35."

the financial and reputational risk to the client of an inside judgement is thus far greater than any challenge that HMRC might mount.

It looks very much like the author is on HMRC's side!

Thanks (3)
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By schocca
24th Jul 2019 21:22

Wow - what a dangerous article. Has the author not considered the contractor who worked for HMRC, was found to be inside IR35 post the new rules and then successfully claimed for historical pension rights....
- Now THAT is expensive....

The clear statement from all this is that if you have long term contractors that have done their HW and are clearly outside IR35 with decent advice, then leave them alone otherwise your financial impact could be very expensive.

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By IANTO
to schocca
25th Jul 2019 09:05

"The clear statement from all this is that if you have long term contractors that have done their HW and are clearly outside IR35 with decent advice, then leave them alone otherwise your financial impact could be very expensive."

absolutely!

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