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Changes to off-payroll working (IR35) rules effective from April 2020

Posted by Jake Smith on Nov 8th, 2019 | IR35

Changes to off-payroll working (IR35) rules effective from April 2020 . Image of woman working on a Mac

The government has reaffirmed plans to make changes to off-payroll working (IR35) rules effective from 6th April 2020. This will affect any contractors working through a Personal Service Company, Recruitment Agencies, and all Large and Medium-sized end clients.

On 11th July 2019, the government published the draft legislation necessary to enact the Finance Bill 2019-20. Among other tax measures, the Finance Bill introduces important changes for workers providing services through an intermediary in the private sector (also known as ‘off-payroll working’ or ‘IR35’).

The final contents of the Finance Bill will be confirmed by the Chancellor of the Exchequer as part of the government’s 2019 Budget. The off-payroll working changes are due to take effect from 6th April 2020 and are summarised in the sections below.

We’ve also produced a webinar where our Head of Accounting Robert Grant explains what directors of personal service companies need to do to prepare.

In this webinar, we look at what the forthcoming changes to IR35 mean for contractors working through a Personal Service Company. We explain the impact on existing or future contracts, how you can get your IR35 status checked ahead of April, and what you may want to do post-April to mitigate against the changes.

The slides from the webinar are available to download in pdf format.

We held a Q&A after the webinar which is available below [Skip to Q&A]

 

Summary of changes to IR35 due to be implemented in 6th April 2020:

There are a number of changes due to be implemented in April 2020, these will have impacts on end-clients, recruiters, and contractors working through limited companies. We’ve summarised the main changes and impacts below. Our IR35 Hub has all the help and support you need to understand IR35 and how it affects you.

The end-client is now responsible for determining whether a contract is inside or outside of IR35 rules

The changes for the private sector mean the end-client is now responsible for determining the IR35 status of a contract with a Personal Service Company (PSC). The rules will be consistent with the changes brought in for the public sector in April 2017.

Small business exemption to new IR35 rules

The legislation applies only to ‘medium or large’ businesses. There’s an exemption for end-clients who are ‘small businesses’ as defined by the Companies Act 2006 which means meeting two or more of the following criteria:

  • Annual turnover is no more than £10.2 million
  • Balance sheet total is no more than £5.1 million
  • No more than 50 employees.

Where the end-client meets two or more of these criteria, responsibility for determining the IR35 status of a contract remains with the PSC and the changes do not apply.

The government has included clauses in the legislation to ensure medium or large businesses do not set-up arm’s length companies or subsidiaries to procure services from PSCs. The legislation will apply to the parent company based on the aggregate amount of turnover and the aggregate amount of the balance sheet total of the connected entities.

There’s no small business exemption for public sector organisations and the legislation will apply to all end-clients engaging PSC workers in the public sector.

Self Assessment - Get the lowdown!

IR35 Status Determination Statement (SDS)

The end-client must confirm the IR35 status of a contract by providing a ‘Status Determination Statement’ (SDS). The SDS must be provided in writing to the PSC worker and, if an Agency is involved in the labour supply chain, a copy must be provided to the Agency responsible for paying the PSC.

These arrangements place most of the responsibility for administering an SDS on the end-client and/or the fee payer (if an Agency is involved).

IR35 status dispute resolution process is led by the end-client

It’s the responsibility of the end-client to establish arrangements to consider any disputes from PSCs about the SDS. The legislation does not specify how such arrangements should work in practice but does state a time limit of 45 days to respond, in writing, to the PSC with the outcome of the review of the dispute.

The decision must either confirm the original SDS is upheld, or, if it involves a revised SDS or conclusion, a new SDS must be provided in line with the arrangements outlined above.

Transfer of employment tax liabilities to another relevant person

The legislation is designed to ensure the organisation with responsibility for issuing the SDS, or the fee-payer if an Agency is involved, is responsible for any employment tax liabilities arising.

The legislation also allows HMRC to recover tax liabilities from another ‘relevant person’. A relevant person is any party involved in the payment to a PSC. This means HMRC can recover tax from the highest party in the labour supply chain which is not complying with the legislation. HMRC believes this will ensure compliance with the rules across all parties involved in the labour supply chain.

5% administration allowance withdrawn (mostly)

As expected, the draft legislation removes the 5% allowance for PSCs to meet the costs of administering the off-payroll working rules. The allowance will continue for PSCs working with ‘small’ end-clients as defined above.

Check of Employment Status Tool (CEST)

The government recognises the Check of Employment Status Tool (CEST) needs to be strengthened. It’s expected that a further announcement will be made when further guidance and support for businesses is published throughout 2019.

Conclusion – The new IR35 rules will cause issues

Crunch responded to the government’s consultation earlier in the year. It’s disappointing that most of the issues raised by us, and other responders, have been largely ignored in the draft legislation. Of particular concern remains the:

  • errors and inconsistencies contained in the government’s online Check of Employment Status Tool (CEST)
  • additional investment required to complete an employment status determination by an end-client on a contract by contract basis
  • removal of the 5% allowance for PSCs to administer off-payroll working rules
  • risks to PSCs from the dispute resolution process which are the responsibility of the end-client to administer.

The government has asked for comments on the draft Finance Bill by 5th September 2019. We’ll be responding to the off-payroll working aspects and will publish our response on our website.

Our “What is IR35?” hub is the place to head for all things IR35 – we have an independent IR35 Calculator tool to help you see if you’re at risk from IR35, a jargon-free IR35 business guide as well as articles explaining everything you need to know about IR35.

 

Does the length of contract affect the IR35 status of an assignment?

The length of contract is a factor but it must be considered in the context of the overall assignment.

A long contract may be acceptable for a complex project where the specialist input of a contractor is required, and where the contractor’s skills are scarce and not available to the end-client. However, a long contract, maybe covering maternity leave in an organisation may be viewed as simply a replacement for an employee, and the nature of the assignment would be one of an employee.

Many shorter contracts for different clients – overlapping at times – could be a good indicator that the PSC operates outside IR35.

 

When will deductions for employment taxes start?

The new rules take effect on 6th April 2020. If you have worked on an assignment before 6th April, and the assignment is inside IR35, then the fee payer (agency) or the end-client is responsible for deducting employment taxes even if the work was done before the new rules came in and the date of receiving payment is on or after 6th April 2020.

 

Who makes the deductions for employment taxes after 6th April 2020?

If an assignment is inside IR35 and you work directly for an end-client, the end-client will deduct income tax and employee National Insurance Contributions (NIC) from your gross payment. The end-client will pay the employer NIC.

If an agency is involved, and the agency is the fee-payer (ie. the entity which actually pays you), the agency will deduct income tax and employee National Insurance Contributions (NIC) from your gross payment. The agency will pay the employer NIC.

If your limited company works for a ‘small’ end-client then your limited company is responsible for income tax, employee NIC and employer NIC (ie. there is no change to the current rules).

You don’t have a choice over whether to be ‘employed’ or not. It is the end-client’s responsibility to determine your employment status based on its review of your assignment.

If an assignment is outside IR35 then employment taxes are not required to be paid, your PSC should receive the payment gross from the end-client or agency, and your company will account for these in your Corporation Tax return – with any personal tax paid through your company payroll or your annual Self Assessment as usual.

 

When you mention an ‘agency would pay the fees’, would YunoJuno count?

YunoJuno would be acting as the agency in this instance, so if the assignment is inside IR35, YunoJuno will deduct employment taxes. YunoJuno has published their own answer to this question on their website.

 

What happens if I have an overseas client?

This is a complex area and you need to discuss how your overseas end-client (regardless of location) is implementing the new regulations.

HMRC guidance suggests the overseas end-client will need to provide a Status Determination Statement. IR35 applies when you pay your taxes in the UK.

 

What is a labour supply chain and does the size of entity at each stage make a difference to issuing a Status Determination Statement?

The end-client, regardless of the number of entities in the labour supply chain, is always responsible for issuing the SDS and passing it to the next party in the chain. It is the size of the end-client, and not the agencies in the labour supply chain, which determines whether an SDS should be prepared (‘small’ organisations are exempt from the new rules).

A simple labour supply chain would be an end-client engaging a personal service company (PSC) directly – the end-client prepares the SDS and passes it to the worker operating via the PSC.

If an agency is involved, the end-client passes the SDS to the agency which is then responsible for passing it to the worker operating via the PSC – the agency does not prepare the SDS.

If more than one agency is involved, the end-client will pass the SDS to agency 1, who will pass it to agency 2 who will then pass it to the worker operating via a PSC.

If any party in the labour supply chain fails to pass on the SDS, they become responsible for employment taxes.

The end-client may decide to pass the SDS to agencies and the worker at the same time.

 

Are SDS legally required to be published when mandated to go PAYE?

If the assignment is offered as a PAYE employed assignment, there is no need for an SDS as IR35 does not apply because you are being employed as an individual rather than through your limited company.

 

What about timesheets?

Your end-client may ask for a timesheet to be submitted by a worker personally. If this is for a fixed number of hours per week, and payment is made to you personally, this may indicate the assignment is one of employment.

If you do submit a timesheet because the end-client needs to calculate payments to your limited company, it’s important that any payment received is in the name of your company and you have invoiced in the name of your company.

 

What does inside and outside IR35 mean?

If you’re inside IR35, the relationship between you and your end-client is one of employment and employment taxes are due. If you are outside IR35, you are a self-employed worker and no employment taxes are deducted at source.

 

If a computer consultancy is running a project for a client of theirs, and they enter into a contract with my PSC, who is the “end client” – the consultancy (who my PSC has the contract with), or *their* end client?

It depends on the nature of the computer consultancy. If the computer consultancy is not an agency (that is, they are actually delivering the work outsourced to them by using your PSC), then the end client for your PSC will be the computer consultancy. If computer consultancy is only an agency (recruitment company) delivering workers including PSC to their end client, then the PSC’s end-client will be the end-client of the computer consultancy.

 

Is the legislation retrospective?

IR35 legislation hasn’t changed – HMRC has introduced new rules about the party who should determine the IR35 status of an assignment.

HMRC has said it won’t look to investigate the application of IR35 rules by PSCs retrospectively unless there is evidence of fraud or criminal behaviour. However, it remains to be seen the position HMRC may ultimately take.

 

What’s the situation re Housing Associations and Charities?

There is no blanket answer to this question. It depends on how the individual body is constituted. HMRC says ‘companies owned or controlled by the public sector’ are public sector bodies for the purposes of IR35.

You should check with your end-client whether they are controlled by the public sector.

 

Will my rates go up if I am inside IR35?

A review of the impact of the new rules for IR35 in the public sector showed about 25% of contractors were able to negotiate an increase in their day rate. Amounts varied.

If you wish to preserve your net income, you should look to increase your day rate by about 20% if possible.

 

Should I keep my limited company open?

There is no blanket answer to this question.

Your company may have high accumulated profits you are looking to preserve for the future.

If you work on assignments inside IR35 and outside IR35, and you have different revenue streams into your company then it’s worthwhile keeping your company trading.

You should step back and think about your company’s potential for growth and expansion over the medium term before making a decision on continuing to trade or not.

 

What if I don’t have an SDS by April?

An end-client or agency should not be deducting any employment taxes without issuing an SDS. It’s important you discuss your employment status with these parties well in advance of April 2020.

IR35 legislation requires an SDS to be prepared and provided to a worker by ‘medium’ and ‘large’ sized organisations, and always for public sector organisations.

 

How will I know if my end-client is ‘small’?

You will need to discuss with your end-client directly. They should confirm the following:

  • Turnover of less than £10.2 million
  • Total balance sheet less than £5.1 million
  • Less than 50 employees

If two of these criteria apply, then it is a ‘small’ organisation.

The new rules specifically prohibit the use of smaller subsidiaries to manage contractors to avoid implementation – it is always the ultimate end-client used to assess the size of an organisation.

 

What’s happening with the CEST (Check Employment Status Tool) from HMRC?

The CEST tool is due to be updated by the end of 2019. HMRC recognises it does not currently deal with the Mutuality of Obligation test as comprehensively as it should. The output from the tool has been presented as evidence at recent HMRC Tribunals.

 

Will this affect my Self Assessment?

If you’re registered to submit a Self Assessment then you must continue to do so. Your IR35 income will be ‘income from employment’ in your tax return.

 

What is financial risk?

If your company is at risk of non-payment by an end-client then the company is carrying a degree of financial risk.

 

What about substitution?

If your contract states you can send a substitute then this is an indicator the assignment is outside IR35. However, the decision by your company to send a suitably qualified substitute should not be able to be vetoed by the end-client. If your company has previously sent, or your end-client previously accepted a substitute, that is also an indicator the assignment is outside of IR35.

If your PSC only offers your services then this can be a sign that the assignment is inside IR35, you could consider whether you are able to have an agreement with another PSC or contractor to cover each other when necessary.

 

What is an Umbrella Company?

Many agencies use an Umbrella company to process the payroll for the contractors they place with end-clients. The contractor becomes an employee of the Umbrella company under PAYE arrangements. The Umbrella company deducts all employment taxes and pays these over to HMRC. You usually pay a fee per timesheet processed by the Umbrella company.

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