Intouch reviews the Office of Tax Simplification’s response to HMRC’s proposed IR35 status tool

HMRC’s proposed IR35 status tool

Last month, Intouch Accounting’s MD Paul Gough shared his thoughts on HMRC’s proposed IR35 status tool within the public sector. In this article he drew attention to the weaknesses in HMRC’s proposals and discussed the likely implications which HMRC appear to have neither fully considered nor understood.

 

As we wait for the outcome from the consultation phase, we read with interest the recently published response from the Office of Tax Simplification (OTS) in regards to the consultation document.

 

Who does the OTS side with?

The contracting community. The OTS believe the proposals will add unnecessary complexity to the already confusing subject of IR35. In particular, they believe it will:

 

  • increase administrative burden, as more information will be needed in order to help determine a contractor’s IR35 status
  • create boundary issues between the private and public sector, as the test’s final decision may not be binding and therefore lack certainty
  • the OTS have previously encouraged the use of a digital employment status tool, but now warn that a tool could only ever simplify the current process if, clear and easy to follow rules and regulations will show (without question) an individual’s working status
  • require two versions, to allow for different circumstances and businesses
  • finally, need to be updated on a regular basis

 

The Public Sector

It would be unfair to subject all contractors to these changes, without explaining in detail how their sector is affected and whether they should be operating within the proposed rules.

 

There’s also the ongoing concern that by enforcing such rules they will create an imbalance between private and public sectors. This in turn would make it harder for the public sector to hire contractors with specialist skills.

 

Protection for the engagers

There must be enforced protection for engagers who can demonstrate that they have taken all reasonable steps to obtain reliable information from the other parties in the supply chain that should have supplied it, but for whatever reason have not done so.

 

5% allowance

The OTS believe that should a contractor fall ‘inside’ IR35, the 5% deemed payment allowance should be eliminated, as it adds unnecessary complexity for the engager. Instead, the PSC should claim it separately.

 

VAT

If a contractor is found ‘inside’ IR35, then there should be no VAT implications. It is unfair for HMRC to make a PSC pay employer’s VAT whilst being forced onto the payroll.

 

Tests and the online tool

Parts one and two of the test (before progressing to the online status indicator) do not show conviction, as the decision is not final. The OTS believe that even if the first two parts did show conviction, it still may not apply as it does not allow wiggle room for any changes to the contract, which the engager / contractor may not be aware of.

 

Materials for the job

The majority of contractors and freelancers provide services which are predominantly knowledge based. If 20% or more of a contract is for materials which are wholly consumed in the services required to complete the contract, then it is automatically deemed to be ‘outside’ of IR35.

 

There are very few circumstances whereby Limited Company contractors, (such as those who specialise in the IT or finance sector for example), would use 20% of materials to complete a contract and therefore cannot be classed as ‘outside’ under this rule.

 

Personal service and control

If the 20% test is failed, the engager must then move onto the second part, two questions on personal service and control questions. Should these two questions deliver a positive answer then IR35 will apply. If the engager is unable to answer ‘yes’ to both of these questions, they will then have to progress onto using HMRC’s online status tool.

 

Attempting to rely primarily on personal service and control tests to determine a contractor’s IR35 status is simply not appropriate for the majority of highly skilled contractors and freelancers. Whilst a highly skilled contractor may not be able to send another contractor in their place, this does not provide a definitive indication of their employment status.

 

HMRC should also consider the fact that for some contractors, especially those who work within the public sector where security is an issue, that sending a substitute to complete their work is simply not an option.

 

For skilled workers, the ‘control’ aspect of the test does not always give a clear-cut answer for whether the contractor is a disguised employee or not. Many stakeholders are of the opinion that such a test is more relevant for the lower skilled flexible workforce, where more direct oversight and control over how the work is performed is more common.

 

The OTS believe that unless the coding for the status tool is based on new employment status case law, then it will be considered biased in HMRC’s favour.

 

Penalties

The OTS completely agree that any tax rules should be supported with financial penalties and interest, but that it must be fair. The rules and procedures must therefore be easy-to-follow, to allow the engager to operate correctly and to avoid penalties.

 

The consultation period outcome

Whilst the exact date for the consultation outcome is still unconfirmed, Intouch will be reviewing it as soon as it’s published, so ensure you’re following us on social media and be first to get all the information and support you need.

 

Worried about how the proposed changes to IR35 could affect you? Our team of expert Personal Accountants are on hand to offer Intouch clients bespoke advice and support, that’s tailored to their circumstances and future contracting goals.

 

If this sounds like the type of specialist support you need as a serious contractor, why not get in touch? We look forward to speaking to you.

 

This blog has been prepared by Intouch Accounting. While we have made every attempt to ensure that the information contained in this blog has been obtained from reliable sources, Intouch is not responsible for any errors or omissions, or for the results obtained from the use of this information. This blog should not be used as a substitute for consultation with professional accounting advisers. If you have any specific queries, please contact Intouch Accounting.

5 reasons the IR35 public sector consultation is one small step for HMRC

5 reasons the IR35 public sector consultation is one small step for HMRC

(One giant leap for everyone else)

 

A play on a famous quote from the Apollo 11 mission (to land on the moon) is where the similarity with HMRC’s mission (to reform the intermediaries’ legislation) ends. Neil Armstrong’s 1969 moon landing was welcomed by all. Unfortunately, the same can’t be said for HMRC’s 2016 IR35 proposals.

 

From 26 May through 18 August – roughly 85 days – HMRC will be consulting with the great and the good about the proposed public sector changes to IR35, which take effect in April 2017. Draft legislation, which will only apply to public sector bodies, will probably follow suit in the autumn. The reforms aim to transfer the burden of determining IR35 applicability from the personal service company (PSC) to the public sector body, agency or third party paying the PSC.

 

Here are five reasons why this doesn’t strike us as a good idea at Intouch.

 

1. HMRC’s IR35 non-compliance statistics are unproven

HMRC claims that a whopping 90 per cent of PSCs (20,000) don’t play by IR35 rules (they incorrectly tax themselves as being outside rather than inside IR35). HMRC estimates that non-compliance will cost the Treasury circa £400m through 2016/17.

 

But Julia Kermode, CEO of the Freelancer and Contractor Services Association (FCSA), begs to differ. She observes that, “there does not appear to be any substantiated data to support HMRC’s 10 per cent compliance claim.

 

Incidentally, the Public Accounts Committee published a report stating that, in 2013/14, PSCs complied with IR35 almost 90 per cent of the time – a wholesale reversal of HMRC’s figures.

 

In light of these statistics, Kermode believes that, “it is inappropriate to persevere with a consultation which appears to have no supporting evidence and where the rationale seems fundamentally incorrect.

 

2. IR35 proposals are unfair, irrational and illegal

Under the IR35 proposals, recruitment firms will be responsible for ascertaining the IR35 status of a worker supplied to the public sector.

 

Bizarrely, they will be held liable despite not having sight of the daily operations of the PSC or its worker (and being unable to confirm the accuracy of the information provided by the worker or the client).

 

According to the Association of Professional Staffing Companies (APSCo), the proposals are “unworkable” because they fly in the face of Article 1, Protocol 1 of the European Convention on Human Rights, which provides that tax systems must be “proportionate, reasonable, public and predictable.”

 

On this note, Samantha Hurley, Operations Director at APSCo, argues that tax law principles dictate that it’s “not reasonable to give parties obligations when they have no means of obtaining the information to fulfil them.”

 

Hurley continues her reasoning (which has been echoed by the Institute of Chartered Accountants in England and Wales): “This is clearly unjust as [recruitment firms] could end up bearing penalties attributable to other people’s lack of disclosure and conduct over which they have no control. The typical recruiter will have to assume that the contractor is inside IR35. This will result in large numbers of contractors in ‘false employment.’”

 

3. HMRC’s IR35 status tool will be inaccurate (and potentially biased)

HMRC has grand plans to devise an ‘all-knowing’ online tool, which the client will use to input information about the assignment to conclusively determine IR35 status.

 

Referring to the online tool, Dave Chaplin, founder and CEO of ContractorCalculator, has this to say: “The finest legal minds in the last 17 years haven’t been able to boil down decades of employment case law into an IR35 questionnaire that provides a binary result. How HMRC is going to achieve this in time for April 2017 is anybody’s guess.”

 

Will the tool be comprehensive enough to cater for all roles, sectors and levels of seniority (à la the current IR35)? Will HMRC be prepared to hang its hat on the tool’s results? Will Joe Public have confidence in them? In reality, the tool will need to have the wisdom of Solomon, the patience of a saint and the trust of all – an unlikely combination!

 

Current thinking in the consultation proposals is that the tool will reach a conclusion in every case: Yes or NO. Intouch is firmly of the opinion that “I don’t know” will be a popular outcome and needs to be catered for.

 

Then, there’s the intractable issue of bias. More often than not, HMRC has lost many a hard-fought legal battle centred on what constitutes an ‘inside IR35’ assignment. It would hardly be a stretch of the imagination if HMRC’s tool toes its own line.

 

Chaplin makes this very point: “The likelihood is that those who are hovering anywhere between certain pass and fail will automatically be deemed within IR35.”

 

4. Contractors’ incomes will fall or contractors will face discrimination

The upshot of the online tool, coupled with HMRC’s inherent bias, is that contractors are likely to be incorrectly put on the payroll and taxed at a higher rate than they should be. According to Deloittecontractors’ average take home pay will drop by 13 per cent if the IR35 proposals go through.

 

Worse still, recruiters may even discriminate against contractors and seek alternatives to meet their staffing needs.

 

5. Contractors will be taxed as employees, but won’t be given employees’ rights

If contractors are taxed like employees, it isn’t unreasonable for them to expect employment rights.

 

FCSA CEO, Julia Kermode, describes the proposals as “unfair, unethical and fundamentally wrong.” Kermode’s is not a lone voice in the wilderness. Chris Bryce, CEO of the Association of Independent Professionals and the Self-Employed (IPSE), says the proposals are “exploitative.”

 

Public sector first, private sector next?

In our view, the IR35 public consultation is part of a much larger HMRC strategy to encourage ‘upstream compliance,’ where taxpayers are educated to get their tax payments right the first time around, which ultimately saves time, resources and increases the ‘tax-take.’

 

As things currently stand, the IR35 proposals are confined to the public sector. But there are growing concerns that, if the proposals are successfully implemented in the public sector, it won’t be long before the Government will venture into the private sector with the same idea (despite “general resistance” by the private and public sectors).

 

So, if there’s ever a time to challenge these IR35 proposals, the time is now. After all, if the system ain’t broke, don’t try to fix it!

 

This blog has been prepared by Intouch Accounting. While we have made every attempt to ensure that the information contained in this blog has been obtained from reliable sources, Intouch is not responsible for any errors or omissions, or for the results obtained from the use of this information. This blog should not be used as a substitute for consultation with professional accounting advisers. If you have any specific queries, please contact Intouch Accounting.