Your Contract: IR35 Determination

Some time ago, HMRC determined that a minority of contractors opting to work via their own ltd company (or Personal Service Company/PSC) were performing roles in a “disguised employee” context, i.e. they were being paid via their company for work that is justifiably that of a regular employee. From HMRC’s vantage point these individuals should be subject to regular tax, National Insurance and other deductions on a PAYE basis.

IR35 was created to reduce this form of trading, and in April 2021 its implementation begins in the UK’s private sector. If your contract/assignment is deemed inside IR35 you will be asked to operate as an employee.

If your SDS (Status Determination Status) demonstrates that your contract is outside IR35 parameters then you will be able to continue your work as a ltd company.

Inside or outside – who decides?

The intermediaries Legislation has been updated over recent years and in 2017 we saw changes to the rules applied to the public sector.

In previous years, it had been the responsibility of the contractor to determine their assignment’s IR35 status, however, the perception from HMRC was that the rules were not necessarily being applied correctly.

With this in mind, they decided that it would now be the responsibility of the engager (end client for the most part) to determine the status – if an inside IR35 verdict was concluded then employment taxes would be due. These would have to be deducted at source by the end client unless the contractor opted to work via an umbrella company, in which case the umbrella would ensure that these taxes were paid over HMRC.

The government’s introduction of the legislation in the private sector will impact thousands of contractors and limited companies.

Key factors to consider

Even though the determination sits with the engager, it is important that you understand how determination takes place – these 3 main points (noted in the simplest terms possible) apply to every proposed assignment:

Supervision, Direction and Control: Does someone tell you what to do, when, and how to do it?

If you are given regular instruction and thorough task direction, your assignment is more likely to be inside IR35.

Mutuality of Obligation: Are you obliged to accept work and is the agency/client obliged to offer it to you?

If yes, your assignment is more likely to be inside IR35.

Right of Substitution: If you can’t work for any reason would you be allowed to send someone in as a replacement?

If no, your assignment is more likely to be inside IR35.

Once concluded, the end client is required to provide each contractor with a Status Determination Statement (SDS) relating to the assignment. It is worth noting that the actual status depends on what you do as much as what may be written in your contract.

Some companies offer services to re-write your contract to make it compliant with IR35 – if it accurately reflects what you do then that’s fine but if it bears no relation at all to what you do at work then you are more likely to be taking a risk in the event of an investigation by HMRC. 

Working via an Umbrella

So, your latest assignment has been deemed inside IR35 and you are suddenly required to operate under an umbrella company employment… What does that mean for you?

Although Umbrellas don’t provide the tax flexibility associated with limited company trading, contractors use umbrella companies for a wide variety of reasons. PAYE schemes offer the easiest way to contract, and you will be free of the administrative obligations that are necessary for limited company contractors.

Umbrellas are seen as a ‘hassle-free’ way of contracting with the company taking care of all your invoicing, administration and payroll processing. You’ll also benefit from full employee rights including holiday pay, sick pay, maternity/paternity pay, company pension plan etc, even if you change agency or end client. Application is generally a quick and easy process and (if you find a reliable umbrella) payments will be consistent and accurate.