Report published: review of changes to the off-payroll working rules

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The government’s report of their review into the reforms to the off-payroll working rules was published yesterday. Unsurprisingly given the review focused on the implementation of the reforms, the review confirms that the reforms will go ahead as planned on 6th April 2020*, with some minor changes.

The review was largely unsurprising and confirmed HMRC’s desire to press ahead with the reforms due to their belief that non-compliance with the current IR35 rules is widespread. There were however some concessions and we have summarised the key changes arising from the review below:

Confirmation of the ‘soft landing’

The report confirms the announcement made by the new chancellor Rishi Sunak on Saturday that there will be a ‘soft landing’ for the first 12 months following the introduction of the reforms. Alongside the report HMRC have published a ‘statement of intent’ which outlines their compliance approach to the off-payroll working reforms.

The statement confirms that for the 20/21 year at least they will adopt a ‘supportive approach’, confirming that they will not enforce penalties for the first 12 months unless there is evidence of deliberate non-compliance. Of course, any unpaid tax and NI liability will still be owing to HMRC and so there is still a significant cost to the end hirer or fee-payer/deemed employer of getting this wrong.

The report once again confirms that HMRC will not open enquiries into individual PSC’s for previous years if there is a change in IR35 status due to the reforms, unless there is a reason to suspect fraud or criminal behaviour.

Commitment to raise awareness of the risks of tax avoidance schemes

Many stakeholders raised concerns that the April 2020* reforms may have the unintended consequence of pushing contractors previously working through their own personal service company into tax avoidance schemes promising a higher take home pay than a compliant umbrella solution.

These schemes present a significant risk not only to the individual contractor but to the whole supply chain. The debt transfer provisions included with the legislation mean that where HMRC are unable to recover the unpaid tax liability from the ‘fee payer’, they will seek to recover it from other parties in the supply chain. They have stated that they will only seek to use this power when a tax avoidance scheme has entered the supply chain.

The move from HMRC to educate contractors directly on the risks associated with these schemes is therefore welcome and the self help guide published today and aimed at contractors is useful. You can read this here. However, there is still much work to do in tackling these schemes and educating contractors is one part of this. Until the umbrella industry is regulated contractors will still be at risk of getting caught up in schemes that can appear legitimate.

Legislation to compel end-hirers to disclose their size

The April 2020* reforms include a small companies exemption, which means the existing rules remain in place for contractors that are engaged by a small end hirer in the private sector. Concerns were expressed concerning the difficulties in recruitment agencies and workers finding out whether the end hirer qualifies as a small company.

The government confirmed that they will introduce legislation in the Finance Bill 2020 which will place a legal obligation on the end hirer to respond to a request for information about their size from a recruitment agency or the worker. This will provide much needed clarity.

Assignments with overseas clients

The report confirmed that wholly overseas organisations with no UK presence will be excluded from the reforms. This is a welcome move as the draft legislation on this matter was confusing. This means when contracting with an overseas end-hirer the responsibility for determining the IR35 status of the assignment will remain with the contractor.

Client led disagreement process

The client led disagreement process introduced with the April 2020* reforms allows the contractor or the deemed employer/ fee payer to make representations to the end hirer where they disagree with the Status Determination Statement.

The report confirms that guidance has been updated to clarify that the end hirer is only required to respond to representations made during the course of the engagement and before the final payment is made to the contractor.

Both the report and the updated guidance state that should a contractor still disagree with the Status Determination Statement after following the client led disagreement process and believe they have been taxed incorrectly as a result of this, the existing Self-Assessment and National Insurance processes can be followed. It is unclear at this point how this will work in practice and what will happen to the employer’s NI contributions made by the fee-payer.

Services provided post 6th April not payments made

The report also repeated the previously announced change that the new rules will apply to services provided from 6th April rather than payments made after 6th April.  This change will apply to the private sector only, in the public sector the new rules will continue to apply to payments made post 6th April 2020*.

The report also confirmed the updates to the employment status manual that were made earlier this month including reading ‘reasonable care’, transfer of liability, recovery from other persons provisions and outsourced services.

It appears the government has taken on board some of the concerns raised in the review and it is good to see much needed clarity on overseas working and the pledge to legislate for end hirers to provide confirmation of their size. With the reforms pressing ahead businesses need to step up their efforts to ensure they are prepared for 6th April. If you need help with this get in contact with our expert team.

Support from Parasol

If you have questions regarding the review or what this means to you and your contractors, please speak to your Parasol account manager who will be more than happy to help.

 

*Update: at the time this article was written, the off-payroll (IR35) reforms were due to be implemented on the 6th April 2020. On the 17th March 2020, the UK government announced that it would be deferring the reforms to the 6th April 2021 to help businesses and individuals during the COVID-19 crisis.

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