A new piece of legislation is due to be implemented in the private sector next year (April 2020) for medium to large sized businesses; the “off-paying rules” also known as IR35. IR35 was introduced in 2000 to prevent tax avoidance from “disguised employment” where contractors would provide their services to clients through a limited company rather than through traditional employment, and therefore with a reduction of their tax and national insurance contributions.
IR35 basically decides whether someone working on a contractual basis should remain a contractor or become an employee. If an assignment is ‘inside IR35′ then HMRC will expect the correct employment taxes and National Insurance to be paid.
The employer or end client is responsible for providing a “Status Determination Statement” (SDS) which confirm the worker’s employment status and the reasoning behind it.
HMRC advises on taking the following step:
- Look at your current workforce (including those engaged through agencies and other intermediaries) to identify those individuals who are supplying their services through personal service companies.
- Determine if the off-payroll rules apply for any contracts that will extend beyond April 2020. You can use HMRC’s Check Employment Status for Tax service to do this. (https://www.gov.uk/guidance/check-employment-status-for-tax)
- Start talking to your contractors about whether the off-payroll rules apply to their role.
- Put processes in place to determine if the off-payroll rules apply to future engagements. These might include who in your organisation should make a determination and how payments will be made to contractors within the off-payroll rules.
We would also suggest making sure all contracts are up to date and very clear in terms of legal and tax requirements (who pays tax, etc.) and keeping accurate records to avoid unnecessary litigation.
In terms of sanctions, if HMRC do decide to proceed with an investigation and establish that one or more of your contractors fall within IR35 you will be required to pay the relevant PAYE and National Insurance taxes, plus interest and a possible penalty.
It is important that processes are put in place to monitor ongoing compliance and make sure you have taken “reasonable care” when assessing each working role.
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