IR35 news archive 2019

All of IT Pro's IR35 coverage from the year

This is an archive of our IR35 news coverage. For the most up to date coverage, click here.

29/11/2019: Opposition parties pledge to scrap private sector IR35 rules

Labour and the Brexity Party have both pledged to scrap controversial IR35 rules from the private sector, with the Liberal Democrats also promising a review of the tax reforms.

In what was seen as a surprise announcement during a General Election small business debate on Monday, former Labour Shadow Minister for Business, Energy and Industrial Strategy, Bill Esterson, said that the party would "absolutely" scrap the rules for private businesses, adding that it should "never have been implemented in one go".

"The way it's been implemented speaks volumes about the slapdash approach the Tories have taken towards the self-employed," said Esterson. "We absolutely can't see it rolled out to the private sector the way things are at the moment."

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He also claimed that the rules had resulted in a noticeable reduction in the availability of skilled workers in the NHS and elsewhere.

The IR35 off-payroll reforms were first introduced to the public sector back in April 2017, designed to prevent the practice of 'disguised employment', where contractors would be taxed at the same rate as a company's employees. The changes, which would move the responsibility for determining tax status away from the contractor and into the hands of the company, are due to roll out to the private sector in April 2020.

Esterson's comments were echoed by Hector Birchwood, Brexit Party representative for Holborn & St Pancras, who also committed to scrapping the policy, claiming that the current rules simply force the self-employed to change the structure of their contracts "to evade the tax altogether".

"As a tax, it does not work, simply because people are too mobile and they can change the way they are," said Birchwood.

However, neither party was willing to share specific alternatives when pushed, although Labour's Esterson did point to measures such as the introduction of a Business Development Agency and the regional delivery of the National Investment Bank, as ways to create a "much fairer system" for taxing the self-employed.

The Conservative Party's Liz Truss, Ed Davey of the Liberal Democrats, and Amelia Womack of the Green Party were also present at the debate, held by the Association of Independent Professionals & the Self-Employed at a venue in Central London.

The Lib Dems stopped short of saying they would scrap the IR35 rules altogether, but Davey did agree that a wider rollout would "undermine the flexibility of self-employed people".

"IR35 is a very difficult and sensitive tool, and by putting it in the hands of the larger companies, be it public sector or private sector, it's had a whole set of unintended consequences," he said. "That must be reviewed. We need to think in all tax policy about the smaller people, the smaller businesses, self-employed."

The Conservatives meanwhile were unwilling to comment directly on the rules, with Liz Truss instead promising a "proper review" of self-employment rules, although the implication was this would fall under a much wider review of tax, the exact scope of which is unclear.

05/11/2019: IT contractor wins 240k appeal against HMRC

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An IR35 tribunal has ruled that Her Majesty's Revenue and Customs (HMRC) was wrong to pursue an IT contractor for more than 200,000 in allegedly unpaid taxes.

Richard Alcock, who worked for the Department for Work and Pensions (DWP) between 2010 and 2015, was told by HMRC that he owed 243,324 in income tax and national insurance contributions.

After an initial IR35 decision in March 2017 backed HMRC's demands for the sum to be paid in full, a First Tier Tribunal ruling last week has supported Alcock's appeal, according to the FT Advisor. The tribunal cancelled HMRC's determinations and declared the IT contractor was not liable to pay any additional sums.

The IR35 reforms are designed to tackle tax avoidance by contractors who don't fall under HMRC's definition of being self-employed and pay their tax through an intermediatory company established to reduce tax liability. The rules currently apply to public sector organisations and will be extended to cover the private sector from April 2020.

Alcock, through his limited company RALC Consulting Ltd, engaged in contracts with the DWP and Accenture for the five-year period, where DWP was a client of Accenture. He had also worked on Accenture projects in the past.

HMRC argued these arrangements meant that Alcock was, in effect, working on an equivalent basis to full-time staff, and was therefore liable to pay the same rates of tax and national insurance, under IR35. The judge rejected HMRC's claims, however, saying the contractual arrangements didn't necessarily mean Alcock would have the expectation of being provided with work every day.

"His contract specifically states that he can only charge for work actually completed," said tax expert and a member of Alcock's defence team, Chris Leslie, according to the FT Advisor. "And to top it off, in one instance they did cut the project short at a moment's notice, and he was not paid.

"There is no question at all that he could charge just for making himself available, and neither was the client obliged to give him work or allocate work the work has already been agreed upfront.

"So, since there was no minimum obligation to provide work and no ability to charge for just making himself available, it is clear that the key elements of mutuality, in the work/wage bargain sense, are missing, and therefore he cannot be considered an employee."

HMRC's understanding of the IR35 legislation has previously been called into question, with MP Ruth Cadbury suggesting that figures show the taxman loses approximately 50% of the cases that it has brought against contractors.

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An HMRC spokesperson told IT Pro: "HMRC is disappointed with the decision of the tribunal and intends to appeal."

01/11/2019: NHS Digital slapped with 4.3m IR35 tax bill

NHS Digital has been forced to pay a staggering tax bill of 4.3 million as a result of an HMRC ruling, despite having already made IR35 status determinations using the taxman's status checker tool.

This bill, which spanned the period between 1 April 2017 and 31 December 2018, is the first the organisation has paid after the contentious IR35 rule changes came into force for public sector organisations in April 2017.

The NHS made its own undisclosed determination using HMRC's check employment status for tax (CEST) tool, however, following HMRC calculations using the same tool, the organisation was forced to pay 4.3 million, a figure said to be much higher than anticipated.

"Following the implementation of the new rules for IR35 introduced for the public sector in April 2017, we undertook a considered assessment of the status for each individual contractor which we believed met the HMRC requirements," the report said.

"However, HMRC have challenged our assessment. We have been in extensive discussions but now consider it appropriate to acknowledge their position and create an accrual covering the period from 1 April 2017 to 31 December 2018. This accrual is 4.3 million including interest and penalties."

The discrepancy alluded to between NHS Digital's assessment using the CEST tool, and HMRC's assessment of the workforce could alarm organisations ahead of IR35 rule changes being extended to the private sector from April 2020.

HMRC claims it will generally stand by the result of the CEST tool when used by organisations like NHS Digital unless a compliance check finds the information provided to not be accurate.

The tool was devised by HMRC to enable organisations to navigate the complexities of IR35 arrangements and determine the status of their contractors in a much simpler way. However, the deployment of such a tool has previously been criticised after it came to light that HMRC's own assessments boasted just a 50% success rate'.

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This figure was determined by Labour MP Ruth Cadbury based on the proportion of legal challenges HMRC brought against contractors and subsequently lost in court.

NHS Digital used this toolkit to assess all contractors employed up to December 2018, but then changed methodology. NHS Digital now makes an assessment internally, before the status of all contractors deemed outside the scope of IR35 is checked again by a third-party provider.

"Along with many public sector organisations, we have been working closely with HMRC on the most appropriate way to apply the IR35 regulations," an NHS Digital spokesperson told IT Pro.

"The Check Employment Status for Tax (CEST) tool forms one part of our overall approach to applying the regulations. Discussions are ongoing with HMRC on potential liabilities and we are unable to say whether the application of the CEST tool has led us to possibly higher liabilities.

"We are now additionally using a third-party assessment for completeness. This is provided through our contractor supply agency to give additional assurance that we are operating the regulations correctly. Until we fully understand the legal reasoning of an assessment produced by HMRC, we will not make a decision on whether to appeal."

An HMRC spokesperson told IT Pro that they were unable to comment on identifiable taxpayers, but added "we just want to help organisations get the rules right".

"HMRC has put an extensive range of support in place to help businesses and other organisations get the status of the contractors they engage right. We have dedicated teams providing education and support to all businesses, public bodies and charities affected."

"The off-payroll working rules make sure that the same tax and National Insurance contributions is paid for individuals working like an employee, but through their own limited company, as individuals who are employed directly."

22/10/2019: IT contractor numbers in sharpest decline since 2008

The number of IT contractors has seen the sharpest decline since the financial crash, according to research.

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There has been a 2.4% decline in IT contractors, from 125,012 to 121,989 in 2018, ending an almost yearly increase since 2008 - which excludes a minor dip in 2014.

It's the sharpest decline since the global financial crisis saw a boom in contractor numbers, according to data obtained from Access Financial, a global payroll and contractor accountancy firm.

The company said the decline in IT contractors last year is likely due to the impact of the off-payroll working reforms in the public sector, which resulted in many contractors being moved into permanent roles or umbrella companies.

"While this is a modest fall it must be seen in the context of a steady year-on-year increase in the number of IT contractors since the financial crisis," said Kevin Austin, chief executive at Access Financial. "The number of IT contractors jumped by 64% between 2009 and 2017, which was driven by demand from both IT professionals and organisations utilising IT skills.

"Many public sector IT contractors sought work elsewhere when the off-payroll working rules came into force. From April next year, their options will be limited. There have already been reports of large scale users of contractors, such as banks, saying they will not engage off-payroll workers from next April but that may turn out to be a knee-jerk reaction similar to what was seen in the public sector when the rules were first introduced."

Access Financial also said that the impact of the changes to off-payroll working rules on contractor numbers is likely much greater than these numbers show. This is because the number of IT contractors increased at an average annual rate of 8% between 2009 and 2017, so the 2.4% decline in 2018 should be seen in the context of what might otherwise have been a further increase of around 8%.

"We could well see a more dramatic fall in the number of IT contractors next year," Austin added. "In those cases where the IR35 status of contractors is borderline, private sector organisations likely will err on the side of caution and refuse to engage those contractors off-payroll. Despite some of the claims being made, however, it seems unlikely that the rules will be the death knell of contracting."

"Much will depend on whether HMRC takes tough enforcement action and publicly hauls an organisation over the coals. If that happens, it likely will have a chilling effect on the use of contractors. If enforcement action is not forthcoming, the impact of the reforms could be more limited."

27/08/2019: HMRC accuses 1,500 GSK contractors of 'disguised employment'

HMRC has delivered letters to almost 1,500 contractors working for pharmaceutical giant GSK, accusing them of being non-compliant with new IR35 tax laws.

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HMRC alleges the contractors would have been employees of GSK were they not operating through a 'Personal Service Company' (PSC), and have therefore miscategorised their employment status to avoid higher rates of tax.

"We're writing to you because you told us that you were self-employed when you worked for, and received payments through, your own company," each letter stated, a copy of which has been supplied to us.

"After looking at the information we have for the 2018 to 2019 tax year, our view is that the contract between your PSC and GlaxoSmithKline (GSK) comes under the off-payroll working rules 'IR35'."

"Whether a worker is employed or self-employed for tax purposes is not a matter of choice," the letter added. "Instead, you need to look at the facts of the working relationship between you and GSK."

GSK said it's aware that a number of employees have received the letters, and has urged those affected to contact their financial advisers, according to a spokesperson speaking to the Financial Times.

It's the latest attempt to curb the use of PSCs and bring private-sector tax laws in line with those already in place in the public sector.

However, Seb Maley, CEO of Qdos, an IR35 advisory firm, believes the move is "yet another example of the taxman's aggressive and unfair treatment of independent workers".

"HMRC takes the view that contractors are guilty until proven innocent," he added. "At this stage, none of these contractors' actual working practices have been reviewed. Without doing so, it's impossible for HMRC to say with confidence that contractors are in the wrong."

HMRC has also been criticised for failing to adequately enforce IR35 laws, with Labour MP Ruth Cadbury claiming in April that the government misunderstands its own legislation.

HMRC has said those contacted have until 19 September to appeal the notice if they feel their work falls outside IR35.

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09/08/2019: Government 'does not appreciate' freelancers'

The vast majority of freelancers do not have faith in the government's planned IR35 reforms, which are set to be implemented within the next year.

From April 2020, the government will enforce a change to how private sector contractors pay tax on earnings. The changes will bring their arrangements in line with full-time employees and public sector freelancers, and workers can no longer channel their income through a limited company to avoid tax.

Ahead of April 2020, however, 85% of contractors do not believe that Her Majesty's Revenue and Customs (HMRC) understand the negative implications of these reforms, according to research by QAccounting.

The survey of more than 1,200 contractors, carried out with resource website Contractor Weekly, found that just 9% feel the Treasury understands how the rules will be implemented.

Moreover, 91% of those asked said they do not believe the government appreciates contractors as a tool for economic growth, as against just 1% who did.

"Given HMRC's heavy-handed approach to IR35 compliance in recent years, you can understand why contractors have next to no confidence that the tax office grasps the possible negative implications of incoming changes to the rules," said QAccounting CEO Mike Butchart.

"With a new Prime Minister now in place, the fact that the majority of independent workers have questioned HMRC's competence should be for food for thought for Boris Johnson - as should the news that contractors do not think the Government appreciates this vital sector of the workforce as a tool for economic growth."

Although the implications of the IR35 reforms are potentially damaging, they can very easily be managed, according to Qdos Contractor's CEO Seb Maley, whose insurance firm carries out work with private sector firms.

"IR35 reform poses a number of challenges to private sector firms, that must prepare in order to be in a position to make well-informed and ultimately accurate decisions regarding a contractor's tax status," Maley told IT Pro.

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"Contractors are understandably concerned, but IR35 reform - albeit needless and potentially damaging - can, in fact, be managed."

28/05/2019: Most IT firms are preparing to slash contractors

More than half of UK IT companies are considering the extreme step of indiscriminately cutting down on the number of contractors they use ahead of planned changes to tax law.

When the government introduces a change to IR35 legislation in April 2020, private sector contractors will be subject to the same rules that contractors have been working under in the public sector since nearly two decades ago.

But research by Brookson Legal has shown that IT companies are preparing to axe the number of contractors they use due to a number of concerns, as well as general confusion, around how the IR35 changes will come into effect.

The overwhelming majority of tech firms, 85%, have that IR35 will affect the number of contractors they hire, versus 73% of all businesses. Meanwhile, 61% of IT companies surveyed confirmed the changes will encourage them to reduce the number of contractors hired, versus 48% of all companies.

Worryingly, 62% of the 500 mid-sized and large businesses questioned said the changes will force them into instigating a blanket approach with their IR35 assessments because they won't have time to assess contractors properly.

"Whilst it is heartening that many businesses wouldn't consider taking a blanket approach to this legislation, the fact that 62% of IT businesses are actually considering doing this is shocking considering the well-publicised impact of this approach in the public sector," said managing director of Brookson Legal Joe Tully.

"IT firms may see this blanket IR35 approach as a quick fix but it is anything but and should be avoided at all costs.

"Far from saving businesses time and money, this approach will lead to serious repercussions - leaving the IT sector wide open to increased cost, a wide-scale contractor talent drain, reputational damage, and in some cases accusations that they have broken the law."

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Among the major concerns businesses share are that IR35 changes will take time to understand, as well as raise costs. Firms are also concerned that projects will be delayed due to contractors leaving, and that they will lose skilled freelancers.

The majority of companies, 56%, have cited the main benefit of hiring external contractors being the specialist skills they offer versus in-house staff.

"The new IR35 off-payroll rules come into force in April 2020 but the time for UK businesses to put their IR35 house in order is now," Tully continued.

"By undertaking proper audits, and seeking expert advice, businesses will be able to illustrate that they are taking 'reasonable care' with their IR35 assessments and will almost certainly find that the impact of IR35 is not as far-reaching as their own gut feeling leads them to believe."

08/04/2019: HMRC does not understand' new tax rules

MPs have accused the government of failing to listen to growing concerns around how IR35 tax rules have affected contractors working within the public sector.

HMRC has come under particular scrutiny for the effectiveness of a tool used to determine employment status, which forms a key part of decisions as to how contractors pay tax. In particular, MPs said, just a 50% success rate for IR35 tax cases HMRC has brought against contractors points to a troubling dynamic.

"The HMRC check employment status for tax (CEST) tool that is used to assess workers assumes mutuality of obligation, which is one of the main tests that has to be assessed in all engagements via IR35 determination," said Labour MP Ruth Cadbury during a parliamentary debate last week. "As a result of the assumption, the CEST tool is flawed.

"It appears that HMRC does not understand the IR35 rules.

"If HMRC has lost approximately 50% of IR35 tax cases that it has brought against contractors, how can it implement an online tool to get a correct IR35 result? HMRC gets that right only 50% of the time when it goes to court, which has to be worrying."

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Another MP, Paul Sweeney, echoed these concerns and asked the government whether there would be formal independent scrutiny to assess the accuracy and overall value of this tool, in light of HMRC's low success rate.

The government's economic secretary to the Treasury John Glen MP said HMRC will continue to review and improve CEST in the coming months. This is ahead of IR35 rules transitioning from covering just public sector organisations to private sector companies too.

To coincide with the ongoing consultation, enhancements to the tool, as well as wider guidance, will be issued ahead of the reforms being rolled out in 2020.

05/03/2019: Government opens second consultation on off-payroll working rules

The government has launched another consultation for its plans to extend off-payroll working rules from the public sector to private sector firms from April 2020.

Stakeholders will be asked for their views on the scope of the IR35 reforms, and how to best provide support and education for what the changes mean for businesses and contractors.

Under the rules, contractors who are employed by a public sector organisation are expected to pay roughly the same tax and national insurance contributions as full-time employees, on the basis of self-declaration.

But many contractors set up limited companies, and take advantage of certain loopholes to pay themselves 'dividends' as company directors. Therefore they can bypass the need to make national insurance contributions.

Changes in 2017 meant IR35 enforcement fell under the remit of public bodies that use contractors, with a further rule change touted by the government aiming to extend the remit of enforcement to private sector organisations.

The government says the changes are an attempt to address tax or national insurance contributions avoided through non-compliance with off-payroll working rules, which will amount to 1.3 billion a year by 2023/24.

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"This consultation is intended to provide organisations and off-payroll workers with greater certainty around how the off-payroll working rules will operate from 6 April 2020 and the obligations and responsibilities of the various parties involved in the labour supply chain," the consultation document said.

This HMRC-led consultation is the second government survey commissioned within a year on the IR35 changes, after a previous consultation was conducted over summer 2018, with the results released in October.

Individuals and organisations will have from today until 28 May to respond with their thoughts on the changes. This is in addition to a series of workshops with invited stakeholders to be held during this period.

The results of the consultation will inform the draft Finance Bill legislation, expected to be published in Summer 2019, with the rule changes being enforced by April 2020.

13/02/2019: Contractors have 'zero confidence' in public sector IR35 assessments

IT Contractors have little to no confidence in the private sector's ability to handle the IR35 tax reforms due to arrive in April 2020, according to new research.

The IR35 rules, which were first introduced to the public sector in 2017, will be extended to the private sector from next year and aim to clamp down on the number of contractors avoiding tax contributions.

Under current rules, contractors are required to self-declare whether their work falls within the IR35 framework, and therefore should be taxed in the same way as full-time employees. However, it's also possible for contractors to 'disguise' their employment by setting up limited companies and receiving payments as dividends rather than a salary, avoiding the national insurance requirements.

The reforms next year will mean that private sector organisations will be responsible for managing IR35 status, and therefore will be required to assess whether each contractor should be subject to the same tax as full-time employees.

Research by contractor advisory firm Qdos has now revealed that 77% of contractors feel the private sector will be unable to handle this responsibility effectively, 30% of which believe systems will not be ready in time for the 2020 deadline.

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What's more, 61% also believe that direct clients will be far better suited as determining IR35 status compared to recruitment agencies.

"Thousands of contractors have been wrongly placed inside IR35 by public sector engagers as a direct result of reform in 2017," explained Qdos CEO Seb Maley. "Understandably, this has led many independent workers to question whether the private sector will be in a position to administer IR35 accurately next year."

Concerns are likely justified, as the IR35 reform to the public sector in 2017 brought with it a slew of incorrect IR35 assessments and blanket policy changes that aimed reduced the administrative strain on companies.

"Private sector clients and recruitment agencies would be wise to pay attention to what are justified concerns of contractors," he added. "Businesses rely on the flexible of the independent workforce, while the recruitment industry, that now finds itself caught up in IR35 reform, depends on contractor placements for most of its turnover."

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