IR35 Legislation
Brightred is committed to providing clients and contractors with the very best customer service. This service extends to providing information and guidance on IR35. Working closely with our partners; The Association of Professional Staffing Companies Limited (APSCo) and the Recruitment & Employment Confederation (REC), Brightred are able to share information and guidance on this subject, but would like to point out that the guidance is for information only, and is only an opinion and not legal advice. It is subject to change as the final legislation and government guidance is yet to be published.
The off-payroll rules from April 2020
Small companies exemption
Importantly the off-payroll rules will not apply where the end user client is a small company. As defined in the Companies Act 2006 (CA 2006)* will also be exempt. The Government are consulting on which tests to apply for non-corporate entities and have suggested two options. Where organisations are exempt, the existing IR35 rules (where the intermediary is responsible for applying the rules) will continue to apply. Finally when an organisation becomes or ceases to be small in an accounting period, for the purposes of the off-payroll rules that change will apply from the start of the tax year following the end of that accounting period, for the purposes of the off-payroll rules that change will apply from the start of the tax year following the end of that accounting period, irrespective of whether the organisation is incorporated or unincorporated.
*A company which meets two or more of the following criteria (a) annual turnover of not more than £10.2 million, (b) balance sheet total of not more than £5.1 million or (c) no more than 50 employees
Passing status decisions through the supply chain
End user clients will have to access the IR35 status of each assignment where the services are provided by an individual working through an intermediary. Under the reforms, they will have to pass that decision and their reasons for coming to that decision, to the off-payroll worker as well as the party they contract with (usually the recruitment business). Given that some supply chains can be lengthy and complex the organisation asks some questions about how to simplify the information flow.
Check employment status for tax tool (CEST)
The end user client will have to understand the IR35 rules and use an appropriate assessment tool to reach an accurate status decision. In 2017 the Government introduced CEST which is an online tool. CEST has come in for some criticism and the Government has committed to working with stakeholders to enhance the tool.
Resolving disagreements over status
Off-payroll workers will have the right to receive the status decision, and the reasons behind it, directly from the end user client. In addition, the consultation proposes a client-led status disagreement process to help resolve disagreements about the status decision reached. It is proposed that a minimum set of requirements will be set out in the legislation.
Liability
There are a couple of different points to consider. Firstly, where the fee-payer is off-shore, the fee-payer’s responsibilities move up the supply chain to the next UK based entity. Secondly, the Government proposes that the liability should initially rest with the party that has failed to fulfil its obligations until such time as it does meet its obligations at which point liability moves down the chain. However, if HMRC are unable to collect the outstanding tax liability from a party, the consultation proposes that the liability should transfer back to the first party or agency in the chain, and if that fails, then HMRC will pursue the client. The consultation does not propose personal liability for directors, office holders or associates of the fee-payer.
What if I work through an umbrella?
If you’re already contracting via an Umbrella company, you will not be affected by IR35 as you will already be taxed under PAYE
