IR35 update on draft government legislation

After the HMRC consultation on details of the off-payroll rules reform between 5 March and 28 May 2019, the government has now published draft legislation.

Coming into force from 6 April 2020, the rules may have an impact on all individuals supplying their services through an intermediary, such as personal service companies (PSC). Recruitment agencies, medium and large-sized organisations that engage with individuals through PSCs will also be affected.

The off-payroll working rules are designed to ensure fairness between individuals working in a similar way. To increase compliance with the existing off-payroll working rules in the private and third sectors, medium and large companies will become responsible for assessing an individual’s employment status and ensuring the right tax and National Insurance contributions are deducted.

SRG are currently working with clients to discuss processes and provide guidance on next steps and have produced guidance for workers impacted. We will continue to publish any updates on our website. If you have any queries, please contact IR35@srgtalent.com.

IR35 FAQs

Q. What is IR35?

IR35 or “off payroll” legislation is the legislation that helps determine whether an individual would be deemed an employee for tax and NI purposes if they weren’t being paid via their personal services company (PSC). The legislation itself has been around since 2000 and at its core, hasn’t changed significantly since then. It has always been the responsibility of the contractor to do their own assessment, and declare to the HMRC their tax status.

Q. What is changing and why?

From April 2020, the responsibility to do the assessment will change from the contractor to the end client. This is because it is widely believed that a large proportion of contractors (approx. 80%) working via a PSC are not taking adequate measures to assess their status and therefore are under paying on tax and national insurance. 

Q. Who does this affect?

Individuals working as contractors who have typically created their own limited company in order to operate. This is known as an intermediary and is most commonly referred to as a Personal Service Company (PSC)

Q. What does this mean for a PSC or limited contractor?

If a contractor is engaged on an assignment and the assignment is deemed as in scope, or where the client cannot satisfactorily determine that the contractor is out of scope, the agency will be responsible for deducting relevant Tax and NI from the total payment made to the contractor.

Q. When do these changes come into effect?

The legislation applies to all payments made after 6th April 2020, therefore may apply to work completed prior to that date. We strongly recommend you keep up to date by submitting timesheets and invoices to us regularly so you minimise the impact on payment for work carried out prior to 6th April. Payments will be made in accordance with the agreed payroll cycle between both parties.

Q. How do I know if I’m inside or outside of IR35?

As the contractor and as part of your current responsibilities, you are legally required to complete regular assessments to see if you are inside or outside of IR35, and therefore to correctly assess your tax contributions. If you haven’t done this already, we strongly recommend that you do this as soon as possible with your accountant or tax advisor. This can be done using the HMRC CEST tool, which has been specially created for this purpose. It’s important to note that regardless of the outcome of your assessment now, the client may find a different result when they complete their assessment in 2020.

Q. I have completed my assessment, and would like to request some changes to my contract with SRG and or working practices– how can I do this?

If the HMRC investigate, they will assess many things including your contract with us and more importantly, the real working practices which take place in your assignment. Although we cannot make changes to your contract specifically, we will endeavour to assess all reasonable requests and support where we can in terms of your working practices.

In reality though, due to the complex nature of an assessment, it’s important not to focus too heavily on one area.

Q. I have completed my assessment, and my accountant/ tax advisor has asked for a review of the upper level contract (the contract between SRG and the client).

The upper level contract (i.e. the contract between SRG and the client) is a commercially sensitive agreement that cannot be shared externally. Although the upper level contract could be reviewed in the event of an HMRC investigation, the focus of any investigation will heavily rely on the actual working practices, and to a lesser degree, the contract between SRG and the limited company (PSC). We are therefore unable to respond to questions related to the upper level contract.

Q. How would my PSC arrange a substitute with the end client if I needed to do so?

A. Please provide written confirmation of your proposed process for organising a substitution. Ideally this would include an overview of suitable substitutes you can provide (or how you would select them). Once you have provided this, we will present it to the client to see if it is acceptable. 

Please note, some of our larger clients have now given us an indication on how they will approach this – we recommend you contact us directly on how to proceed should you wish to discuss providing a substitute.

Q. What are SRG doing in relation to IR35 and the upcoming changes?

A. The legislation is clear that the responsibility for completing an accurate assessment lies currently with the contractor, and will move to the end client in April 2020. SRG are not financially regulated and so it is important that we don’t complete assessments, or give specific financial advice. We do however recognise that this is potentially a big change for many of our customers, and so will do everything we can to facilitate visibility for all parties. To this end, SRG are actively speaking with our clients to understand their plans and how they intend to conduct assessments in order to communicate this with you asap and in advance of the April deadline. We hope to complete this by year end, giving ample time to make any adjustments necessary, and will provide further updates during the coming months.

Q. What happens if I don’t agree with the client’s assessment?

A. As part of the reforms, the client is required to have a dispute resolution process. During our discussions with clients, we will be looking to establish what process they have in place and what circumstances would trigger it. In the event that there is a disagreement in assessment of status that cannot be resolved, the client is responsible for making the final decision.

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