IMPORTANT UPDATE REGARDING CHANGES TO OFF-PAYROLL WORKING RULES (IR35), April 2020
Our latest blog post back in January advised that we were in the process of conducting preliminary status determinations for all our Limited Company Contractor workforce and we can confirm that we have concluded that phase of the project.
Phase 2 required us to engage with end user clients throughout January to share our findings, confirm our approach and have each client sign off/approve the results of the determinations we’d carried out, because under new legislation that responsibility is ultimately theirs.
Disappointingly, this process has taken significantly longer to complete than expected.
Meetings we’ve held over the last 6-8 weeks have highlighted that clients across all sectors of the construction, engineering and property sectors are not as far forward with their preparations as we’d anticipated, which has meant those meetings have focused largely on educating clients on the implications of the forthcoming changes to IR35, and less on making decisions on individual status determinations.
That in turn has led to delays in us writing to you, as clients now take the time required to consider the information we’ve provided and determine their approach. Different businesses approaching the issue in a variety of ways is only complicating the matter further.
Contract Scotland’s plan now is to work with clients to press them for decisions on status determinations in the next couple of weeks, with a view to being able to confirm those to you at the earliest opportunity.
While this delay was not expected, we still believe there is more than adequate time to complete the work required to comply with the legislation well in advance of the April 6th deadline. It’s worth reconfirming that the changes to the rules will not apply retrospectively and will only apply to work performed from 6th April onwards.
If you have any questions relating to this update or on IR35 generally, please email IR35@contractscotland.co.uk
The off-payroll working rules will still apply irrespective of how many clients and assignments a contractor is working on. There is the argument that if you are working on multiple projects for various clients, this will demonstrate that you are in business on your own account as an independent contractor, and therefore fall “outside IR35”. However, your IR35 status is assessed on an assignment basis – working for multiple clients is not a significant indicator of being in business on your own account; the IR35 status for each assignment is judged on its own merit.
From April 2020, all public sector authorities and medium and large-sized private sector clients will be responsible for deciding whether IR35 applies. If the client either 1) fails to make a status determination, 2) fails to pass the status determination down the supply chain, or 3) fails to take reasonable care when making the status determination; the client may be liable for the tax and NICs as the deemed “fee-payer”.
Contractors are advised to engage with their agencies and clients regarding the new rules to help to ensure that all parties are prepared for April 2020. It is important that clients exercise reasonable care when making a status determination, given the issues that arose from the public sector reform in April 2017 as a result of blanket “inside IR35” determinations.
If you are providing services to a small private sector client, they will be exempt, and they are not required to follow the new IR35 rules. Your PSC will remain responsible for determining your IR35 status and making the appropriate tax deductions and NICs.
We have concerns about converting a current time and materials contract to a SOW contract as the contract must accurately represent the reality of what happens during the assignment. However, for new assignments with new clients this is an option for highly skilled contractors.
In an assignment where a contractor agrees to perform specific tasks or deliver certain outcomes for a set price and within an estimated delivery time, there is less likelihood of the client exerting control over the individual. A Statement of Work (SoW) contract, if appropriately executed, is likely to be “outside IR35”, compared with the traditional time and materials-based contract on a set hourly or day rate.
It is more likely that an assignment will fall “outside IR35” if the performance of the services carries a genuine business risk, e.g. payment is conditional upon acceptance of services or satisfactory performance, and rectification of defects or poor performance are made at the contractor’s cost. Although this may seem like an easy option to adapt to the new rules, you will remain at risk if the reality of the contractual performance does not reflect the contractual wording. Please note that not all assignments are appropriate as a SoW contract, this will depend on whether the recruiter and the end client offer this option.
It is expected that you will be involved to some degree in the client’s status determination process, as there are some questions in the HMRC CEST tool which require the contractor’s input – for example questions on how you run your business. However, there is no statutory right for a contractor to be consulted during the status determination process.
The draft legislation imposes an obligation on the client to provide a “client-led status disagreement process”, either the recruiter or the contractor may disagree and follow the process. The client must respond to a request to review the status determination statement within 45 days. The client must either confirm the determination is correct, with reasons, or provide a new status determination statement reaching a different conclusion and withdraw the previous one.
If you disagree with the client’s determination, you will need to write to the client and give reasons why. You need to ensure you keep records of status determinations and any corresponding disagreements. During the dispute process the client’s determination stands.
If your assignment falls “inside IR35”, the take-home pay will be less as the recruiter has a statutory duty to deduct the appropriate tax and NICs. Be aware that historically, PAYE rates have always been lower than PSC rates so you may find that in future pay rates offered are lower.
Recruitment businesses cannot lawfully deduct secondary NICs from an agreed fee, but recruitment businesses may adjust the contractor’s pay rate to factor in the additional costs of supply which include employers’ NICs. Depending on your contractual terms, there may be scope for the rate to be negotiated accordingly.
Should you wish to continue operating as an “inside IR35” contractor, you will not benefit from any “employee rights” such as holiday pay, sick pay, pension contributions, dismissal rights etc. You may receive these benefits through your employment in your PSC.
If your assignment falls “inside IR35”, it is likely that you are no longer in business on your own account and could be within scope of the Agency Worker Regulations (AWR). Under AWR, you are entitled to comparable pay to a permanent employee on the client site. If you opt to engage via an umbrella company, you are an employee of the umbrella company and therefore you will benefit from employment rights and AWR will apply.
The 24-month rule is in reference to claiming travel expenses. This rule has no bearing on the IR35 status of an assignment.
There are suggestions that contractors could set up a limited liability company with a small group of contractors to allow them all to effectively exercise their right to substitution. This could be a practical way of operating provided that all of the contractors are directors and shareholders and collectively control the business. This will need serious consideration and bespoke advice.
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