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.   

What's HAPPENING AND WHEN?

The IR35 rules in the private sector are changing. In brief the IR35 rules apply where an individual works through an intermediary, such as a personal services company, and provides their services to an end user client. If that intermediary did not exist, but the individual looked like an employee of the client for tax purposes, then the assignment is deemed to be ‘inside IR35’ and the individual’s pay should be subject to PAYE tax and national insurance. Employers’ national insurance will also be due.

Due to non-compliance, the Government changed the application of the IR35 rules in the public sector in April 2017 – these are known as the ‘off-payroll rules’. The Government believes the time is now right to extend the off-payroll rules into the private sector and has published its consultation on the detail. That consultation closes on 28 May 2019 and draft legislation is expected in summer 2019. The off-payroll rules will then apply in the private sector from 6 April 2020.

The off-payroll rules from April 2020?

The off-payroll rules which currently apply in the public sector will also apply in the public sector, albeit with some changes.

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