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IR35 changes less than six months away

18th November, 2020

The overhaul to the IR35 rules, postponed because of Covid-19, is now less than six months away. For most off-payroll workers, it adds up to a big change to procedure from 6 April 2021. In this article, Nottingham chartered accountants Clayton & Brewill explains why the change is all about tax and employment status, and who makes the decision on status.

What are the IR35 changes?

IR35 changesHMRC is encouraging businesses to prepare themselves for the changes to the off-payroll working rules, known as IR35, which will come into force on 6 April 2021. From this date, all public authorities and medium and large sized clients will be responsible for deciding the employment status of workers (sometimes known as contractors).

Who will be impacted?

The change applies if you provide your personal services to an end client through an ‘intermediary’. The most common type of intermediary is a worker’s own ‘personal service’ company (PSC), but an intermediary can also be an individual, partnership, or unincorporated association. All intermediaries are potentially impacted by the change.

Determining employment status: moving the responsibility

The IR35 rules were introduced because of government concern about loss of tax revenue, particularly National Insurance Contributions (NICs), arising through the use of intermediaries in the labour chain. The government believes widespread misclassification of off-payroll workers, who should really be treated as employees, is to blame.

It is therefore moving responsibility for making the decision on employment status on each contract away from contractors and PSCs, and on to the client receiving their services. This has already been done for engagements in the public sector.

From 6 April 2021, you are no longer responsible for deciding your employment status if working for a ‘medium’ or ‘large’ client in the private sector. It becomes the client’s responsibility instead.

Clients are considered large or medium if they meet two of these conditions for two consecutive years:

  • Annual turnover more than £10.2 million
  • Balance sheet total (assets) more than £5.1 million
  • They have an average of more than 50 employees

Note: for unincorporated businesses, only the turnover test applies. In addition, the new procedures don’t apply if your client is based wholly overseas.

If your client doesn’t meet these conditions, it will be considered ‘small’. There’s no change if you contract with a small client. Even after the changes are introduced from 6 April 2021, you remain responsible for deciding if IR35 rules apply to contracts in such cases.

 How to determine employment status

The employment status determination question is this; would you be an employee if any intervening entities, like the PSC, didn’t exist, so you were engaged directly by the client? In many cases, the question is easier to ask than answer, and the factors to weigh up are frequently complex; HMRC’s online status checker tool (CEST) can be used to make a determination.

What about tax?

If the off-payroll working rules apply, your worker’s fees will be subject to tax and NICs. Where a medium or large client decides your contract is within scope of the IR35 rules, it will then:

  • Calculate a ‘deemed direct payment’, based on the fees charged by your PSC
  • Deduct PAYE and employee NICs from your fees, reporting and paying these to HMRC
  • Pay employer NICs based on the deemed payment.

This effectively means the end of the tax advantage of receiving income via a PSC, with its traditional profit extraction strategy of low salary plus dividend payments. If your contract falls within IR35, you are essentially treated as an employee paying your PSC for tax purposes. You won’t be taxed twice, and you can still choose to extract a combination of salary and dividends from your PSC, though the historic benefit is lost.

Though you will still invoice your client, you are on their payroll. As such, your deemed payment is charged to PAYE and NICs on a monthly basis in the same way as a direct employee. 

What should you do now?

With the changes less than six months away, you should expect to receive communication from the clients you work for, asking for information about your working practices and outlining what they intend to do. Be aware, too, of HMRC warnings about schemes purporting to minimise income tax and NICs legally. These can constitute tax evasion and pose a real risk to contractors.

You may also want to think about:

  • Using the CEST tool now to check any contract running beyond 6 April 2021. HMRC advises that ‘any preparation done now will remain valid for April 2021
  • Whether it’s possible to renegotiate fees where clients consider your engagement will be within IR35
  • Checking the size of clients you work for, to see if the changes will apply
  • Whether operating via a PSC is still optimal for the long term.

Navigating the legislation changes can be complex for any business under normal circumstances; but in the middle of the current crisis, planning for change will likely be challenging. If the IR35 changes impact you and your business and you’d like to discuss your situation, please get in touch.

Clayton & Brewill would be happy to talk through the off-payroll changes, including your options and the tax consequences. For those working only for small private sector clients, where contracts do not fall under IR35, we can help review optimal profit extraction strategy. Call us on 0115 950 3044 or send an enquiry here.

 

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