back to article UK taxman told: IR35 still isn't working in the public sector, and you want to take it private?

The UK's taxman, HMRC, is under pressure to rethink "short-sighted" plans to extend IR35 tax reforms to the private sector and scrap its "unfit" assessment tool as a consultation on the matter closes today. The government is tightening up tax rules on off-payroll working to squeeze contractors for a bit more cash. Broadly, it …

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I did read and respond to HMRC's consultation document. It was utter nonsense, full of self-congratualatory twaddle about how great their public sector rollout has been.

MOO is ignored, use of work equipment is still considered an issue despite no IT department anywhere allowing BYOD except on guest networks and they continually lose in court, but they will still force this legislation through.

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Maybe in 20 years when the UK IT industry no longer exists the government might wake up and realise this wasn't such a good idea after all.

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Windows

Maybe in 20 years when the UK IT industry no longer exists the government might wake up and realise this wasn't such a good idea after all.

That will happen right after cats learn to team up in order to operate motor vehicles.

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So much for growth

"We are overrun with orders, turning customers away"

"Then take on more staff"

"There isn't enough experienced talent out there that can hit the ground running"

"Then take on more contractors"

"It'll cost - have to raise our prices"

"[Expletive deleted]"

"And we'll have to take on someone to do the IR35 shit"

"A contractor to administer their own payroll?"

"Yes"

"[EXPLETIVE DELETED] that!"

"Time to sell out and move on, my dears."

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What a bunch of tools

"...but HMRC has assumed it is present in all public sector contractor engagements."

Yes, HMRC has a very long track record of making stuff up as it goes along and assuming stuff is a certain way because it happens to suite their needs.

It's probably why they can't come-up with a correctly working tool for IR35 assessment - because such a tool would either have to include HMRC's made-up assumptions (in which case it's wrong and everyone points and screams "that's b*ll*cks") or it would have to ignore HMRC's assumptions and work only on facts (in which case most people would be outside of IR35 anyway, and that doesn't fit HMRC's wishes).

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Anonymous Coward

It is absolutely vital to the economy that some of the most lavishly paid people in the country should go on paying no tax.

Wait, what?

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I think you're confusing large corporates running tax avoidance schemes with contractors. Contractors get the same basic rate allowance tax free that everyone gets, but get hit for 20% corporation tax before they can touch a penny more than that, and apart from a small amount of capital gains allowance (which has been slashed over the last few years), pay tax on all the rest. I presume you also feel they don't need compensated for all the other costs (insurance, accountants), risks (laid off with little notice, for no reason or redundancy) or lost benefits (sick pay, maternity/paternity, pension, etc).

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pay tax on all the rest.

They generally don’t pay NI, so taking the Employee and Employer parts that’s roughly 25% rate not paid.

I presume you also feel they don't need compensated for all the other costs (insurance, accountants), risks (laid off with little notice, for no reason or redundancy) or lost benefits (sick pay, maternity/paternity, pension, etc).

One reason contractors receive a higher rate in the first place is to cover “all the other costs” via their own limited company or their own self employment. Even taking a fair comparison adding pay and benefits value it is generally true that contractors still receive a higher rate that covers the greater risk and uncertainties.

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You're right we don't pay NI (at least not as much), when I was perm I think my NI was about 3k (+ change) a year.

Now it's closer to 300, however I'm paying around 20k more in tax overall than I ever did as a permie...

And my net pay isn't that much more (some months when I'm feeling frugal it's less).

What people continue to realise is that for insurance and liability we have to work through limited companies, which means OUR DAY RATE IS NOT OUR MONEY, of my day rate I pay out 19% immediately on corporation tax (what's the basic rate for a permie?) Then when I take the money out of the company and it becomes mine I pay personal income tax on it again.

Admittedly, this still works out less % wise than I'd pay as a permie, but £ wise HMRC are getting much more from me.

If I lost the ability to control who I work for, when I work or where I work I'd go back to permie, my income wouldn't change much but HMRCs take of my money would go down.

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"They generally don’t pay NI, so taking the Employee and Employer parts that’s roughly 25% rate not paid."

Not really true. The full calculation is this.

Top rate - salary you take (which has all PAYE, NI etc paid out of it) - applicable expenses (ie, the contractor paid them) = gross profit to the contractor.

Next, how to get that profit out of the company into your pocket and how much will that cost? The answer is as a company dividend.

Gross profit - corporation tax (20%) = net profit/ dividend to the contractor as personal income.

Then, you lose 10% of the dividend in the contractors personal accounts as another tax.

So, money extracted via dividend has been taxed at 28% to get into your pocket (20% corp tax, then 10% of the 80% left to you)

Then, in your personal tax affairs, you need to take into account things like tax credits and other fun things to determine what the optimum salary actually is. It used to be just the free tax band and no more, but now its more nuanced and is probably about £30kish.

All told, the only tax that really goes missing is the employer side NI in the second part of the equation. A standalone ltd company contractor will pay about 30 - 35% effective tax to get the money into their pocket (I can't be bothered to go through my own accounts to tell you the precise figure). Really, not much different to an employee, considering you get no holiday pay, sick pay or any other benefits from an employing organisation. You also need to keep at least 6 months money in the company, all the time, or you'll go hungry one day, guaranteed.

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Anonymous Coward

Don't forget the Pension Contributions

from yourself and the company. HMG wants us all to save for retirement don't they?????

AFAIK, the company contribution reduces the Corporation Tax payments.

And your contribution is before tax.

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Anonymous Coward

They should start looking at all the governments own contractors first - more closely

Where I work, one contractor has been employed by the Govt. for over 10 years at a stoopid rate (£800+ per day) and all he does is take a month off now and again and change company name. Same guy doing same work for same money but avoiding IR35. Wouldn't mind so much but he isn't even that good :-)

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No Tax?

I'm not sure where the idea that contractors currently pay no tax comes from.

As a ltd company, all contractors have to pay Corporation Tax (20%) off the top. Then if they take a PAYE salary above a very low threshhold - both they AND their company need to pay tax. Further, if a contractor decides to take dividends - they are also taxed.

Above this, contractors receive no sick pay, maternity leave, and are required in nearly all jobs to have various types of business insurance cover.

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Re: Don't forget the Pension Contributions

"AFAIK, the company contribution reduces the Corporation Tax payments."

Yes company contributions reduce CT - the same as your employers contributions to your pension reduce their CT.

"And your contribution is before tax."

Yes, but so is yours. I dont really see your point. If youre going to have issues with contractors avoiding tax dont pick pensions as your jumping off point because your pension is taken from your gross income too.. you filthy tax dodging permie.

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Re: They should start looking at all the governments own contractors first - more closely

"Where I work, one contractor has been employed by the Govt. for over 10 years at a stoopid rate (£800+ per day) and all he does is take a month off now and again and change company name. Same guy doing same work for same money but avoiding IR35. Wouldn't mind so much but he isn't even that good :-)"

Filed under "Things that didnt happen"

They clampped down on that behaviour YEARS ago, so either hes been very lucky or youre talking out of your bum.

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Re: No Tax?

@darrennwxi

Dont forget no notice period.

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Anonymous Coward

Re: They should start looking at all the governments own contractors first - more closely

"Where I work, one contractor has been employed by the Govt. for over 10 years at a stoopid rate (£800+ per day) and all he does is take a month off now and again and change company name. Same guy doing same work for same money but avoiding IR35. Wouldn't mind so much but he isn't even that good :-)"

Yes, now imagine if he were a civil servant, getting a hefty pension, significant sick and holiday entitlements and being very difficult to make redundant, all on the salary equivalent of that rate (discounted of course for the benefits.) How is it better value?

That said, I don't buy it, but this is the government we're talking about and waste is their middle name, so who's to say?

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Anonymous Coward

Correct, they receive a higher rate because the employer does not have to pay out any discretionary benefits to attract them.

At the same time, the contractor has no legal protections against their engager, and can be terminated on a whim, with NO notice. They lose out on legally provided protections that permanent employees enjoy, in addition to the higher risk plus forfeiting client benefits.

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Anonymous Coward

Your comment is, unfortunately, propaganda and little more.

Businesses are not paying out "lavish" rates to attract talent, and certainly will not pay more than they need to for it, just for the sake of paying more. To get to the equivalent of a permanent salary, you have to throw in: employee benefits (sick pay, pension, holiday pay, any other perks the employer offers) plus the fact that it is much harder to be made redundant plus severance pay. You can't just pick any random rate you like, either, e.g. £800, because the relevant comparison point is how much it'd cost to source a permanent employee to do that work. Sometimes, the hiring firm cannot do so at all, e.g. where the expertise required is niche. You also need to deduct the costs of hiring an accountant, maintaining records and the cost of carrying the required insurances. Because the client does not have to go through an expensive hiring and firing process, they can afford to pass a little more onto the contractor in their rate. This is how business works. Time you grew up and acknowledged it.

Onto the matter of taxes. Contractors pay around the same amount as a permie, particularly now that the dividend tax has been introduced, which more or less covers the same amount as employee's NICs. What it does not cover is the EMPLOYER'S NICs. However, why should the contractor bear this cost? It is the client which is not paying this through engaging the freelancer. They will very rarely pass on the savings from this to the contractor, and arguably due to the nature of the relationship, it is right that they benefit from these savings. Yet, if the government did wish to effectively redress this imbalance, the correct approach would be to apply an off payroll tax to the engager, to the tune of 5%, and NOT the contractor.

Bear in mind that your comment is also a caricature - many freelancers are individuals on pretty average if not low rates, below £300/day (as I discussed above, this is significantly reduced once all the costs above are factored in plus taxation comes out of it.) This is particularly the case in the NHS, which is now struggling for resource and utilising the off payroll reforms, with the help of third parties, to wrongly place workers INSIDE IR35, when no fair assessment of this has been made on an individualised basis, as is required by the law (this is known as blanket assessments.) The NHS and other public bodies are doing so to benefit from tax avoidance schemes,saving them on VAT.

This will be repeated in any extension of the off payroll reforms to the private sector. The problem is, freelancers on low or average rates, are being stuck with the deemed "employer's" NI tax bill, seeing their rates reduced as much as 30%, and then tempted to sign up to avoidance schemes which are sold on very misleading terms, and are easy to use to fool those who are not experts in tax law... HMRC will then recoup these taxes from these already maligned workers years down the line and heap penalties on top. How is this fair? There is currently no direct appeals process for the off payroll reforms in the public sector that a worker unfairly deemed INSIDE can avail themselves of.

Please educate yourself before spreading virtue signalling, feel good nonsense. Ultimately, not only should these reforms NOT be extended to the private sector, but they should be rolled back in the public sector, IR35 scrapped, and the Taylor Review taken into account to bring in something more workable, like an off payroll tax on engagers in some limited scenarios. HMRC's conduct on this matter is also ripe for a review.

Articles supporting these points below:

https://www.contractoruk.com/news/0013633nhs_vat_dodge_could_cost_more_ir35_reforms_save.html

https://www.contractorcalculator.co.uk/payroll_ir35_perceived_tax_avoided_hirers_hmrc_543210_news.aspx

Further, a piece debunking HMRC's claims:

https://www.contractorcalculator.co.uk/payroll_ir35_factsheet_hmrc_541410_news.aspx

https://www.contractorcalculator.co.uk/docs/20180808-CESTNotFitForPurpose-ContractorCalculatorWhitepaper.pdf

https://www.contractorcalculator.co.uk/cest_exposed_hopelessly_unreliable_hmrcs_foi_543610_news.aspx

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Anonymous Coward

And why should the contractor pay money the deemed "employer" is saving, anyway?

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Anonymous Coward

People forget the dividend tax... this is usually in the region of £2k, but can be substantially higher depending on how much you withdraw p.a.

Plus there is this perception that all contractors are super rich. The average day rate is c £350, which amounts to £40-£50k ... for a skilled individual like a business analyst or software developer, that is not exactly a fortune. In reality, many will be paid far below this, between £100 and £300, and they have less negotiating power and, if these reforms are rolled out will, as is the case in the public sector, bear the brunt of the rising costs, to the tune of a 30% earnings reduction. I don't see how this is fair, and it will only foment avoidance, as it is already doing in the public sector.

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And don't forget VAT..

Never forget VAT!

So contractor rate may be £400+VAT. So HMRC skims 20% off the top before any other taxes due. It's never clear where the value is added by HMG though, especially in HMRC's case.

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Anonymous Coward

Contractors do indeed get the same basic allowance, however they do not get hit with corporation tax. Their company has to pay corporation tax on the profits. A contractor is not their company. their company provides sick pay, holiday pay etc. You are why IR35 exists.

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Re: And don't forget VAT..

HMRC is not skimming anything. The contractor is acting as a collector for HMRC. It is the company taking the contractor on who is paying the 20%. One again a contractor who whines but has no fucking clue about how things actual are.

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Remember that your employer also has to pay National Insurance, so it is a bit more than double that.

Rates are:

First £162 per week, no NI

£163 - £892 - employee pays 12%, employer pays 13.8%

£893 and above - employee pays 2%, employer pays 13.8%

It is charged on whole pounds only, so for example if you are earning £162.99 per week, you round it down to £162 before calculating the NI due.

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Re: No Tax?

Here's an example:

Suppose the employer is paying a total cost of £50,000 for the contractor

On a salary, that would be £44262.51 + Employer's NI of £5737.49

On that, you pay £8360 in tax and £4627.52 in NI, leaving you with £31,274.99 in your pocket

Suppose they paid via a company, and that company had no expenses other than salary, dividends and tax, and paid all the after-tax profits out as dividends

Company pays a salary of £8424 which is tax and NI free, leaving a taxable profit of £41576

Pays corporation tax of £7899.44[1], leaving a net profit of £33676.56

Dividend tax on that is £1893.79 leaving you with £40206.77 in your pocket

[1] £3426 remaining on your personal allowance + personal savings allowance of £5000 is tax free, the rest is taxed at 7.5%

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Re: And don't forget VAT..

One again a contractor who whines but has no fucking clue about how things actual are.

My bad. I forgot the memo that contractors are all evil tax dodgers, sipping champagne from the skulls of Grauniad reader's first born.

Reality is they're collecting 20% VAT on their fees, paying 20% CT, paying Employer/Employee NICs and/or dividend/capital gains tax. And also paying professional indemnity/liability insurance fees, health cover, and stashing some money aside for holiday pay. HMRC's been slowly squeezing contractors/freelancers to the point that a lot of the benefits disappear under a mound of paperwork.

So much for encouraging the service industry, agile work force etc etc.

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"Contractors do indeed get the same basic allowance, however they do not get hit with corporation tax. Their company has to pay corporation tax on the profits. A contractor is not their company. their company provides sick pay, holiday pay etc. You are why IR35 exists."

While you are absolutely correct the contractors money and the companies money are not one and the same most people like to blur the line for the sake of contractor bashing...

But youre right it's all separate.

In fact, you have no idea if a contractor is taking 100% of the profits as a wage and paying full tax and NI, taking minimum wage and dividends or just leaving everything in the company to claim entrepreneurs relief when shutting the company down (if that still exists).

The majority will be taking minimum wage and a dividend AND leaving some in the company to cover sick days, holidays and time between contracts.

Seeing as you insist on posting as anon it's very hard to work out which of the other comments are yours, or who youre addressing..

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"A contractor is not their company. their company provides sick pay, holiday pay etc. You are why IR35 exists."

You miss the a major part of IR35: If you are found inside, you must take all of the money your company receives as salary. There is nothing left to provide sick/holiday pay etc, and the client doesn't have to provide it, either. AFAIK, you can't even deduct the company running costs (accountancy, insurances etc), so you have to pay for all of these, essentially, out of your post-tax income.

So, no, your company cannot pay holiday/sick pay, and on top of your tax you still have to have all the relevant insurances, still have to file company accounts etc. It really is the worst of all worlds.

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I presume you also feel they don't need compensated for all the other costs (insurance, accountants)

If your accountant costs you money then you have the wrong accountant. And I say this as a PAYE slave hoping to go contracting next year. My main reasoning is that it will reduce my effective tax rate (percentage of gross lost to taxes) down from about 38% to about 23% [1], and that on a higher gross too (yes, I too have an accountant and we have discussed this). I'm honest enough to admit its 99% about tax avoidance, and 1% about avoiding appraisals because they bore me.

There's pros & cons to either way of working, but accountants "costs" aren't one of them.

Laid off for no reason applies in effect to permies too. No matter what employment law says, unless you are willing to sue your ex-employer to enforce it (in which case get enough money you never need to work again, because in all probability you won't ever work again), then employment rights simply don't exist - I consider them worthless to me because when it came time to enforce mine, I couldn't without shooting myself in both bollocks as a result.

Lost maternity or paternity applies only for a few years of your life - the rest of your life you'll never make use of it. In my case, I won't be having more kids, so cannot lose paternity pay.

As I say, swings and roundabouts. But lets give the martydom stuff a knock on the head eh? We each work the way that rewards us the best, so you & I and everyone reading your post know for a fact which way is most rewarding for you. And I don't blame you, I don't want to beat you, I'm just busily planning to join you.

[1] - Yes, that is a <u>very</u> aggressive tax strategy, which is very complicated (I do software development in tax arbitrage for a living) and also involves moving a lot of post tax costs onto the business (things like lunch, phone, petrol, parking etc) to reduce the corp tax it pays and ensure more of my post tax money remains mine rather than sunk into costs of being at work ala PAYE - costs are doubly efficient so well worth looking at. Lets face it, anything south of my prevailing rate is a win, and I could achieve that on my own without an accountant.

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The other way to look at this...

is that the bigger corporates in the private sector will almost certainly find ways of avoiding the hard or inconsistent rules. Use Amazon, Google, Facebook as good examples of entirely legitimate but politically unpopular tax dodging.

HMRC will turn itself inside our in the courts to attempt to demonstrate it's superiority and indeed has already failed a number of times to do so.

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"IPSE’s response [..] was clear: don’t do it, and definitely don’t do it any time soon.”

So it will be done before the end of the year, because no government official anywhere can understand the word "no" if he's not the one saying it.

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Joke

The Tool Works Fine:

if (Applicant.HasSetFootInUkInLast6Months)

{Applicant.IsLiableForIR35 = 1;}

else

{Applicant.IsLiableForIR35 = 0;}

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Re: The Tool Works Fine:

So, a small shop keeper with no employees should be liable for full UK income tax, including employers contribution of NI, on all sales (not profit, and with no allowances for cost of goods or expenses)?

That's the equivalent of being hit with an inside IR35 decision.

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Childcatcher

It's going to take a brave government to reform a Tax System that is no longer fit for purpose. The world or employment has moved on yet the tax system has only had sticking plasters applied.

But no government will take on the task of wide scale reform since the current fudge hides the true status from the voting public, hides the fact that almost everyone is going to need to pay more tax.

This is not a problem that can be fixed by taxing one group. It's not just about the rich, its not just about corporations, it's about fairness, everyone paying their appropriate share, and at the moment there are too many loopholes and exemptions that are exploited by all sorts to gain an advantage.

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Anonymous Coward

Yeah but forcing contractors, who already pay about as much tax as the employed, with far fewer protections to pay more to support unproven revenue projections by HMRC is not the way forward.

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Anonymous Coward

CEST - definitely not fit for purpose!

I work from home and build web sites for multiple clients (more than 20 separate companies/people). I just went through the CEST (Check employment status for tax) questionnaire for a laugh and answered as accurately as I could though, in many cases, none of the selectable answers were appropriate, but I had to pick something...

The result? Yep, it said that "This engagement should be classed as employed for tax purposes."

Idiots!

Good job the questionnaire was anonymous (as I've also marked this post, just in case - you never know when the devious bastards are watching).

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All this, for £500M

Surely there are easier, more media friendly targets, like the big firms with their creative accounting processes... In 2014, my IT contracting limited company paid nearly five times the corporation tax Facebook did?

Besides, for every £1 I invoice, approximately 42p goes to the state... My PAYE self would expect about 35p to go for every £1 earned.

To quote 6music's Radcliffe and Maconie "What a world we live In today..."

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Re: All this, for £500M

£500m they can't even evidence is the case.

They were told by the HoL to get re-evaluate their cost to yield assessment of the measure, because they could not prove any of their figures.

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CEST la vie

Such is life.

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Anonymous Coward

This seems to have slipped their mind:

https://www.contractoruk.com/news/0011502lords_slap_hmrc_face_over_pscs_and_ir35.html

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Flame

MOO

The day HMRC determines that my clients get to tell me what to do is the day I start looking at re-locating my business.

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Thank God I'm retired

I was never fearful of losing an IR35 case, but was very fearful of ever having HMRC coming after "me", since logic has nothing to do with it, in any way shape or form. Never has, never will. Anyone still out there has my utmost admiration for hanging in there. And I couldn't believe Philip Hammond spouting yesterday in response to the rescue of House of Fraser that he wants to update the tax system for the digital age. Be afraid - be very afraid!!

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Anonymous Coward

You should all be grateful

This change will create a mass of new HR jobs and their associated management, so what if the new jobs create no revenue I am sure that the there will be tax breaks for employers to more than offset this hidden transfer of the cost of collecting a pound of flesh for the GOV.

My thinking is that as things are moving towards 1 HR member for each productive one then there will be an opening to combine the needs of the GOV ( to collect money so the affluent can move their wealth to more secure states ) and the employee via the creation of a mental health/HR role.

The new role envisioned entails the HR commandant sitting next to any productive employee/company owner whispering "no, you can't do that" and "I did mention that would increase your GOV charges (after all the company funds disappear)" until they succumb to mental strain. At this point the HR/White coater can gently remove the spent employee/owner from the building into oblivion. Oblivion given that the social welfare system is likely to be gone before IR35 and spent employees are clearly responsible for their own condition and because the HR agent has certified them insane. Clearly they cannot be trusted to run to the shop let alone a business.

I would continue in this trend but after reading what I have written I am now afraid that they might take me seriously and that I am giving them too many ideas.

Forget I mentioned it, carry on everyone, the sun will still rise in the morning and all that, HR is clearly not an invention to move the cost of taxation and control onto companies.

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Anonymous Coward

Presumably if I'm suddenly classed as an "employee", I can then go and claim sick pay, employer pension contribution, job perks etc.

If not, why not?

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Anonymous Coward

This may be the best thing to happen to IR35 since its inception!

Perhaps it is a contrarian view, but it's possible this is great news for contractors. Let me explain:

Senior public sector policy makers / managers only ever make decisions based on whether it's going to affect their chances of promotion and/or getting a gong. So it's in their personal interest to set policies that go in line with gov't thinking, and just say: "90% of contractors need to be caught by IR35".

Private sector managers don't give 2 hoots what HMRC want, they're just interested in the bottom line. If and when contractors, after leaving a contract, start suing their former clients for having been negligent in assessing their IR35 status (as easily determined in court, usually quite fairly) and claiming compensation for having hence paid too much tax, clients in future will simply decide that such gigs are *not* caught by IR35.

What's even better is now there's very little chance individual contractors will go through the multi-year hell that some of our colleagues have at the hands of typically bungled IR35 investigations by HMRC. Because it's no longer the contractor's responsibility to make this assessment.

So this in fact could be great news. But it does need a few hardy souls, possibly back by an IPSE legal fund, to challenge private sector clients' IR35 assessments.

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