Carry on consulting

David Kirk

12 August 2015

Dialogue about making IR35 work has been ongoing for the past four years, but to very little effect.

  • The government wants to improve the effectiveness of the IR35 legislation.
  • HMRC have issued a discussion document.
  • IR35 is ineffective and the government or HMRC would like to find a solution.
  • The rules in fact require the taxpayer to pay more than their fair share of liabilities.
  • Why should the secondary National Insurance liability not be paid by the person for whom the work is actually done?
  • Many contractors using personal service companies are working for the public sector.
  • It is time to scrap IR35 and replace it with something that works.
They may have been easily overlooked by readers of Taxation, but tucked away on page 44 of the summer budget’s Red Book, and followed a few days later by a discussion document with the innocuous title of Intermediaries Legislation (IR35), were the following two paragraphs:
“The government recognises that many individuals choose to work through their own limited company. However, where people would have been employees if they were providing their services directly, anti-avoidance legislation commonly known as IR35 introduced in 2000 requires that they pay broadly the same tax and National Insurance as other employees. As highlighted by reports from the Office of Tax Simplification and the House of Lords, it is clear that IR35 is not effective enough. Non-compliance in this area is estimated to cost over £400 million a year.
“The government has asked HMRC to start a dialogue with business on how to improve the effectiveness of existing IR35 legislation. The government wants to find a solution that protects the Exchequer and improves fairness in the system.”

The driving seat

As always, it is helpful to understand who is behind this initiative: HMRC or the government? I do not know the answer for certain, but these paragraphs came as a real surprise because HMRC have already been “having a dialogue” with those parts of business most affected by IR35. This has been going on since 2011, when the IR35 Forum was set up at the suggestion of the Office of Tax Simplification, its aim being to “advise on improvements in the administration of IR35”.
There seems to be a lack of joined-up thinking here. The only obvious results of four years of deliberations were the famous business entity tests. Unfortunately, these had to be withdrawn after a couple of years because the public sector was incapable of operating them properly. As for the private sector, the reality is that hardly anyone pays any attention at all to IR35, even though there is an obligation on personal service companies to self-assess IR35 liabilities if they arise. This cannot be condoned, but it is a fact of life. It is also the case that very few cases are actually investigated. We have ended up in an environment which does not work for anybody.
What is really doing on here? HMRC’s document is revealing. Having discarded several other options which they recognise as ineffective, the document suggests that “those who engage a worker [emphasis added] through a PSC [personal service company] would need to consider whether or not IR35 applies … and, if so, deduct the correct amounts of income tax and National Insurance contributions as they would for direct employees.”
I will consider the implications of this later in this article, but first one very important point needs to be made.

Who pays?

The Red Book referred to above says “IR35 … requires that [those it affects] pay broadly the same tax and National Insurance as other employees.” This is fundamentally wrong. It actually requires quasi-employees to pay very much more than this, because they have to pay the employer’s share of National Insurance as well as their own, while the business that HMRC regard as the employer is for some reason let off this impost. The “employer” may pass as the person paying it in the eyes of some in government, but to purveyors of plain English, and to those in the real world who might be affected by the tax, this is plainly not the case.
The idea presumably is that the “employer” pays some extra money to the contractors which they can use to pay this levy. Like all such utopian ideas, this just does not happen.
The effects are startling as shown in The IR35 Effect. The marginal rate of tax is 48.6% for a higher-rate taxpayer on IR35, as opposed to 42% for an employee and 39.2% as opposed to 32% for a basic-rate taxpayer.
Any analysis which does not take this basic point into account is fundamentally flawed.

Time for replacement

Let me put forward a suggestion. Instead of trying to “improve the effectiveness” of IR35, which is broken beyond repair, why not replace it with something simpler? This could be levying a new class of employers’ National Insurance on those that HMRC deem to be employers, when payments are made to companies providing their labour. There will doubtless be squeals from the very same businesses that lobbied the government into backing down from making them operate IR35 when it was introduced in 2000, but this suggestion is a great deal simpler than that original proposal. That would have made the “employer” responsible for the whole of the PAYE and National Insurance contributions, whereas this suggestion leaves the employees’ side as it is.
“Employers’ National Insurance should be paid by employers” is, I think, pretty hard to argue against as a principle for raising tax.
While “employers” will doubtless protest, how many of them would actually be affected by such a proposal? A good many of the contractors that IR35 is aimed at work for the government. Employers’ National Insurance, in this instance, is circular money travelling around various government departments and it should not be difficult to find a solution that satisfies everybody. These comments also apply to local government and large charities, because these are substantially funded by the central government too.
So what about the private sector? Banks have, traditionally, been wholescale engagers of labour via personal service companies and would be affected by my proposal, but in the current political climate they are not in a strong place to lobby against additional tax liabilities. What about the construction industry? There may well be protests from that sector, but it is not noted for the widespread use of personal service companies.
The reality is that if the government were to put this charge on to deemed employers, it would be easier to collect and more likely to be paid, without any theoretical change in the circumstances giving rise to the tax. Facing down the lobbying cries would be a price well worth paying for that.

The tax incentive

It is when the attempt is made to force the deemed employers to deduct employees’ National Insurance and PAYE that one can expect trouble. With the new dividend tax coming in next year this ought not to be necessary anyway – there will be little incentive to incorporate if employers’ National Insurance is paid by employers.
The PAYE system is not geared up towards collecting money from the end-users of labour when there is a string of companies in the way, and trying to do so is bound to be messy. If the users of labour were to pay the secondary National Insurance contributions, there would obviously need to be some system for identifying what has been paid, so that if the PSC pays a salary above the threshold this does not have to be paid twice. That, though, would be a minor piece of bureaucracy compared with many and a small price to pay for getting rid of some of the more intrusive and complicated requirements of operating PAYE. That there is very little incentive to incorporate now is shown by Dividend v Salary.
Dividend v Salary compares an employee on a salary with a taxpayer with his own company who has the employers’ National Insurance paid by the “employer”, after the new dividend regime comes in in 2016. Under the “dividend model”, the person takes a salary equivalent to the personal allowance; I have also assumed that his company pays £1,500 in accountancy fees.
On gross pay of £20,000, he is now better off without a company. After that, the advantage moves towards incorporation, but starts coming back down again, because – for higher rate taxpayers – the marginal rate is 46% for those on the company model against 42% for those on the salary model. The point of maximum advantage for companies is about £58,500, giving a difference of a little over £3,000. At that level there might be some tax-motivated incorporations but, bearing in mind that it is barely worth it at both lower and higher levels, I suspect that it is not something that accountants will suggest as a matter of routine. Many people do not like the hassle of having to run a company and require a bigger incentive than is shown in the Dividend v Salary table to feel that it is worth the bother. Further, there is always the danger that these tax rates will be tinkered with in the future so as to reduce the differential still further. Perhaps the government could take a deep breath and abolish IR35 altogether, just collecting the employers’ National Insurance as suggested above?

Flawed design

It is clear beyond any doubt now that IR35 is not just an unenforceable and punitive tax provision: it is deeply flawed in its design in a number of ways. One of the most controversial things about it is that, when investigating and as a matter of routine, HMRC must go to the contractors’ end-clients to get information about their contracts and the way that they work. In the private sector this causes huge resentment. Contractors feel, in some cases with justification, that their clients will think that they are causing trouble and wasting their time and will want to get shot of them. HMRC compliance activity ought not to lead to the loss of work.
It is not as if this kind of risk is something that ought to go with the turf. In certain industries, a contractor will probably have heard about IR35, but what does he find when he wants to know whether it applies? Remember that there is legal obligation to self-assess each and every contract to determine whether or not IR35 applies.
Consider a contractor who wants to be compliant. The HMRC’s Employment Status Manual is 370 pages long and virtually all of it is relevant to the subject. What happens if the contractor asks his adviser to deal with it? In reality, accountants are struggling with this, never mind their clients. Even if they can wade through the department’s manual, they will inevitably have to make judgments for which they are ill-equipped and which they have little incentive to research. Even if they were minded to add a course on this to their continuing professional development for the year, remember that we are talking about general practice accountants who coping with a number of other changes being thrown at them at the same time.
It will be truly awful when the new regime for travel-to-work expenses comes in. The normal employment status tests for deciding whether the company is within IR35 will still be necessary, but completely different tests (purely based on supervision, direction or control as to how the work is done) will be needed to determine whether travel-to-work expenses can be claimed. Who on earth thought of that one? I think I can say with complete confidence that few, if any, advising accountants or inspecting HMRC officers will get this right.

Calculating the liability

Once HMRC have done their work and concluded that IR35 does apply, the department will send the client a bill which can be truly mind bending. If HMRC have gone back six years, it may well be three times the company’s actual turnover. But surely the client will not have to pay as much as HMRC’s figures suggest, because they have already paid higher-rate tax on the dividends? This is where time limits can be a real problem. The time limit under ITEPA 2003, s 58 is five years and 10 months from the end of the tax year, so if the investigation has gone on for a long time, and in my experience it often does, the early years do not count. Protective claims need to be put in as soon as an investigation starts.
Then there is corporation tax. As readers will know, the effect of IR35 applying is that there is a “deemed payment” of salary, with accompanying employers’ National Insurance. In principle, that gives rise to additional corporation tax relief. I say “in principle” because time limits are a problem here as well. The limit here is four years from the financial year end. So the taxpayer will probably lose for the earliest years even if a claim is made as soon as IR35 becomes an issue. There is the possibility of special relief under TMA 1970, Sch 1AB, but who wants to have to rely on that?
If this were not bad enough, there is a further problem. Having just explained the counterclaims that can be made on behalf of the taxpayer, the adviser will find that the department has an “interesting” way of further increasing the client’s bill. If HMRC go back six years, interest can be charged on the IR35 claim at 3%. The higher rate and corporation tax counterclaims come back with interest at 0.5%. Advisers might think that HMRC would do what is obviously fair and offset the latter against the former – but no. They will find (in my experience at least) that there is no offset until the matter is finally settled, so the department can make a 2.5% turn on a balance that exists only on paper and is not actually owed. In this way, the interest will very likely add 50% to the overall bill. Whatever the strict legal position, clients in this position feel that the result here is very unfair – and I agree with them.

Impartial advice?

The HMRC IR35 helpline also merits a mention. This has been a consistently good source of advice throughout the unhappy history of IR35, and users are promised that “any information you give won’t be shared with HMRC compliance teams”. However, I gather that I am not the only person to have found somebody working on both sides of this particular Chinese wall. I am not the only person to have discovered the same inspectors working on the helpline as in compliance teams. While I can accept that information will not be deliberately shared with compliance teams, what procedures are in place to see that this does not happen accidentally? This does not look right.
If IR35 appears to have been designed with the needs of big business in mind, there is a little corner of industry where HMRC practice increases its advantage. In 2008, HMRC agreed a set of guidelines to determine employment status for the radio industry. However, although the big fish in this business know all about them, it seems that nobody thought about letting IR35 advisers into this. Should an adviser be lucky enough to know of their existence, a copy can be obtained very easily by phoning HMRC’s TV and Broadcasting Unit on 0161 261 3254; the guidelines will arrive by return. But can they be found on the HMRC website? No, and I am told that there are no plans to put them there. For the benefit of practitioners needing to give IR35 advice to contractors in the radio industry, they can be found here.
This is not fair. Let’s recap. We have a tax that allows big business taking advantage of this labour to say “nothing to do with us”; is incapable of proper enforcement by HMRC; those potentially affected cannot be expected to understand; their advisers cannot be expected to understand either; requires clairvoyance to put in the correct counterclaims against HMRC to stop them getting away with more than they are entitled to; and allows the department to contact a taxpayer’s client and disrupt relations between the two. Finally, this is a tax where inadvertently getting it wrong risks leaving the taxpayer in a state of financial ruin. To make it worse, this oppressive and unjust tax is causing all this havoc for the sake of raising £550m a year or, so HMRC say, enough to keep the government going for a mere six-and-a-half hours.

Time to go

It is time for IR35 to go. I have mentioned one possible solution to it in this article – there are doubtless others and some were proposed in the Office of Tax Simplification’s report on employment status last March. When the time comes for HMRC to have a dialogue with Taxation readers, I think that there should be a robust response: “We are not interested in making IR35 work. We’ve been having a dialogue about it for years. It can’t work any way you try it. It is time to scrap it completely and replace it with something that collects the tax from those who ought to be paying it. Employers’ National Insurance should be paid by employers.”
David Kirk represents the ICAEW on the IR35 Forum; however the views expressed here are his own.
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OnAugust 18, 2015, posted in: Articles, IR 35 by

Employment status – proposals for change

The Office of Tax Simplification has published (on 3 March 2015) a report “into simplifying the difficult issue of how to determine whether a worker is employed or self-employed for tax purposes”. In this analysis, our guest blogger David Kirk – author of Employment Status: The Tax Rules – welcomes the report as a serious analysis of the complex issues that arise in relation to this topic.

When I was invited to meet the Office of Tax Simplification to make my contribution to their employment status enquiry I expressed the view that they must be absolutely mad to touch the subject: the OTS deals in quick wins and this was a subject where there were categorically no quick wins. Indeed, rather the opposite, as tinkering about with it as the Government has been wont to do in recent years has generally produced knock-on effects which HMRC failed to predict but everybody else did. It gives me genuine pleasure then to say that their report on the employment status, published on March 3rd, is a real tour de force and ought to be read by everyone with an interest in it. There are, it is true, no quick wins here, but they do at least recognise that there cannot be. When it comes to sorting out the subject for the longer term, by contrast, there is plenty to mull over, both in terms of the problems as they are now, some potential solutions, and the problems that would be caused by those solutions. It is absolutely clear that only a very wide-ranging enquiry designed to examine all the purposes to which employment status tests are put has any chance of sorting everything out and leaving a lasting impression.

Foremost in all this is a recognition that both tax and employment rights must be looked at, as the straightforward employment status tests feature in both and affect a very large number of people. Indeed one of the things that had made the current situation look ridiculous was that the Department for Business, Innovation and Skills (‘BIS’) has been conducting an employment status enquiry at the same time as the OTS has, with outsiders seeing no apparent linkage between the two. This kind of unjoined-up government really must come to an end, and with any luck a report of this kind will ensure that it does.

An impressive amount of research has been done into the drivers behind employment status decisions, and one that particularly struck me was that the tax – or specifically employer’s NI – that could be avoided by either a judicious or a fraudulent decision to get people into self-employment was not at the top of the list. Apparently businesses are even more worried about giving away employment rights. It will certainly be good for BIS (and indeed other government departments) to know that their mania for employment rights not only causes businesses to want to get out of giving them altogether, but also by doing so leads to a reduced yield for the Exchequer. Likewise HMRC need to be firmly told that putting people on to PAYE without giving them the associated employment rights that normally comes with that is fundamentally unjust.

The report then goes on to explain ‘direct routes to improve the current situation’ and ‘indirect routes to take the heat out of the problem’. The former part is on the face of it a bit disappointing, with a focus on better HMRC administration (heard that one before?) and an improved employment status indicator tool (there is an interesting discourse on the one used in Australia which appears to be far more user-friendly than ours, but it is going to be very difficult to arrive at one that is not too rigid). There is also discussion of a statutory employment test which could take a number of forms: this one really ought to remain in the ‘too difficult’ box. In the author’s view the disappointment lies not in the OTS’s report, but in the implications of its analysis which suggest at the end of the day that there really is not much that can effectively be done here.

It is therefore to the final part that one must look for solutions, and bearing in mind the breadth and complexity of the subject they very sensibly do not recommend anything for any more than further study. But the agenda for further study is spot-on. There is a firm recognition – displayed several times – that the ‘elephant in the room’ (their phrase) is employer’s NI, and that any solution that does not address the requirement that employers pay it, but engagers of self-employed labour do not, is unlikely to be much of a solution. Abolishing it altogether is mentioned, which would be very radical, although it is not something that the OTS can pick up and run with as significant sums of money would need replacing from some other form of tax. Also mentioned is a mechanism for putting certain company directors on to classes 2 and 4: this idea could be developed further I suspect. Additionally discussed, although not recommended, is an inbetween status for a freelancer company which would have a sole director and a minimum salary level. However pride of place is given to a system where deductions would be made in a similar manner to the Construction Industry Scheme, so that some payments on account of tax are made and engagers can carry out their responsibilities without being frightened of the consequences of having got their status decisions wrong. The report indicates that this would command a surprising amount of support from business, which one would have thought would resent the bureaucracy involved.

All in all this is a most welcome and timely report, and it is much to be hoped that the Chancellor will pick it up and run with it on budget day.

David Kirk, MA, FCA, CTA is director of David Kirk & Co., a niche tax consultancy specialising in payroll taxes and employment status, with particular reference to intermediary staffing companies (employment agencies and umbrellas).
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OnMarch 5, 2015, posted in: Articles, Company Tax, IR 35 by

Travelling expenses – Our submission in response to HMRC’s 2014 discussion document

David Kirk & Co. Ltd. welcome the opportunity to respond to HMRC’s discussion document Employment Intermediaries: Temporary workers – relief for travel and subsistence expenses. The firm is a specialist consultancy in the field of employment intermediaries and personal service companies which make up over half its business. It director, Mr David Kirk, is the author of a book on employment status and he represents the Institute of Chartered Accountants in England & Wales on the IR35 Forum.

We feel that the starting-point from which the document is drawn up is at best based on some unproven and controversial assumptions, in particular these:

– That there is a clear-cut dividing line between temporary and permanent workers;

– That there is a clear-cut dividing line between employment intermediaries and service or consultancy providers;

– That there is a clear-cut dividing line between private commuting and travel at work;

– That there is a dividing line between allowable and disallowable travelling expenses that will be seen by all (or most) workers as fair;

– That over-arching contracts of employment are necessarily in fact contracts of employment.

In the modern world these dividing lines can very easily become blurred and people can slip from one to another easily, often without realising it. If a different tax outcome is required for different statuses, then a dividing line has to be made between those on one side of the fence and those on the other. However this dividing line is bound to be arbitrary, and to be seen to be arbitrary and sometimes unfair by some people. Moreover, because of the flexible nature of modern working practices it becomes very easy to morph from one form to another. This means that legislation brought in to outlaw certain practices is likely to lead to exactly that kind of seamless transformation from one business model, newly made non-compliant, to another one that is compliant. The Government then needs to step in with legislation to stop that, and so the show goes on. In the meantime the legislation almost inevitably traps people that it was not intended to trap, or force them also to seek new business models (invariably more expensive), thus adding to the complexity and incomprehensibility of the tax system.

It is indeed striking how much of this legislation has been brought on by previous legislation in different areas. First the Government brought in employment protection in the 1960s, which meant that businesses tried to get out of being liable for breaches of employment rights by insisting that they would only pay companies. This led to more and more companies being set up, some of which masked employment in all but name. This led to the introduction of IR35 in 2000, which made these companies unattractive where IR35 applied. This in turn led to the rise of umbrella companies, who were – still are – dependent on their over-arching contracts of employment and the tax relief that follows to gain a competitive advantage, and they were able to use this to persuade workers not to stay on agency payrolls as they would be better off with the umbrellas. Before long not many agencies were operating payrolls and everybody had to be paid through an umbrella or personal service company. It also led to the rise of managed service companies: this model was made unattractive by further legislation in 2007, which again led to umbrellas taking over where they left off. A further rise in the umbrella model was created by the forced placing of large numbers of construction workers on to PAYE last year, through the onshore intermediaries legislation.

The likely reaction of umbrellas and those working in them needs to be taken into consideration. As umbrellas are dependent on over-arching contracts of employment for their very existence, they will cease to be in their present form as they will become uncommercial. People who have a thriving business will not, however, simply retire from the fray, but will look at making other models work of employing the same people. From this, one can reasonably predict that those currently employed by umbrellas will split in three different directions:

– Some will go on to agency payrolls and so will lose the benefits of tax-free travelling expenses. We would expect these to be largely the lower-paid, who will not get any corresponding rise in their rates of pay and so will lose out. We urge HMRC to think long and hard about this before taking any steps.

– Others – mainly the higher paid – will go into personal service companies, many of whom are temperamentally unsuited to this as a business model. This will cause all sorts of problems, not least difficulties for HMRC in keeping up with ensuring the compliance of a large number of small companies, an area where they appear to be having much difficulty already.

– In other cases the umbrellas will attempt to ensure that they fall outside the definition of employment intermediaries, whatever that may be, and mutate into construction companies, or transport companies, or consultancies, or service companies. This will require quite a strong presence in a particular industry to pull off and will not be possible logistically in every case, but we point out that something very close to this was the norm in the construction industry with the ‘CIS umbrella’ model before April 2014, and in cases where there is a standard skill required it will be much easier.

Nor do we believe that attempts to prevent the second of these choices by extending these proposals to personal service companies (‘PSCs’) is likely to be any more successful, as they will react in just the same way. A definition of a personal service company has proved elusive so far, and if one was established we can be sure that there will be attempts to circumvent it. Although it is a standard part of the PSC business model that the individual contractor is named on the contract documents (whether with or without a right of substitution, there is in many cases no particular reason why this should be so, and if it were to cause problems we would expect this to disappear. One would then be left with a PSC director looking much like any other director and it is hard to see how he could be subject to a special regime for expenses.

The fact is that unless one were to take a view that all travelling expenses should be allowed for tax including private commuting (which no-one is suggesting), or that no travelling expenses should be allowed (which no-one is suggesting either), the line drawn between what is allowable and what is not is bound to be arbitrary. There will always be a certain amount of unfairness built into the system wherever the line is drawn, and different people will have different ideas as to where that unfairness lies. Thus whilst we do perceive an element of unfairness in the present system, we do not see that on its own as a reason for legislating.

We should also like to point out that a number of things that the paper complains of appear to be contrary to existing legislation. Where existing legislation is being flouted, new legislation is unlikely to ensure a greater level of compliance. There seem to be several problems here:

– A small number of umbrellas are run in a manner that can only be described as criminal. (In this context we were particularly pleased to see Work Legal-E Ltd named as a deliberate tax defaulter on HMRC’s latest defaulters’ list: compliant organisations

throughout the industry will be relieved to see a competitor with such dubious methods driven permanently out of business.)

– A rather larger number do not understand the legislation properly. The larger businesses have access to good legal and accounting advice and so can remain compliant as long as the advice given to them is compliant. However what seems to happen is that whenever someone thinks that he has found a way of circumventing the law, he goes to a lawyer or accountant without the necessary expertise, who tells him that his plan works when he should be saying the opposite. As soon as this entrepreneur starts up, copies of his documentation get into other peoples’ hands who then do not see the need to take legal advice at all before implementing it. Those who take this approach are never going to be constrained by new laws: they will frequently not even hear of their existence. If they do they will understand the new laws no better than the old, and so will not keep to them for that reason. Their professional advisers, if consulted at all, will be none the wiser.

– The only solution to these forms of non-compliance is increased HMRC activity. Regrettably the opposite seems to have happened: in this field HMRC has a reputation for hardly investigating anybody at all and for being a soft touch when they do. Although most of the issues are well understood at senior level and by policymakers, they are frequently not by the inspectors who do compliance checks, who appear to lack the intellectual calibre to do the task properly. There are three areas in particular where HMRC have developed a reputation for being soft: o The ‘single place of work’ travel expenses rule in ITEPA s. 339(5)(a)(ii), which is hardly ever investigated;

o The managed service company legislation, where a number of accountancy providers appear to be sailing very close to the wind – surprisingly in view of the fact that their proprietors have unlimited liability for PAYE debts. The model in paragraph 37 looks very like a managed service company model;

o Minimum wage infractions, where again the legislation that HMRC is responsible for enforcing is draconian: the model described in paragraph 36 looks like an example of this, as indeed is expressly stated by the document which states that ‘the promoters and users of this model incorrectly believe that this entitles the individual to tax and NICs relief on travel and subsistence expenses’ (emphasis added).

We believe also that the employment status of these so-called over-arching contracts of employment is open to question. Contracts will vary but many that we have seen appear to fall foul of two of the most basic requirements for them to be contracts of employment:

– Mutuality of obligation is a pre-requisite of any contract of employment, and does not generally exist in three-way relationships. This is because while the obligation to pay the worker rests with the umbrella, the obligation that the worker has is to work for a different party – the end-client. This is dealt with at great length in James v London Borough of Greenwich [2006] UKEAT 0006_06_1812 (this was subsequently upheld in the Court of Appeal).

– Control by the employer is also a pre-requisite for a contract of employment. An umbrella company exercises no meaningful control over its workers: this is exercised by the client – see Bunce v Postworth [2005] EWCA Civ 490.

It is noteworthy that of all the enormous number of employment status cases that have been decided, even including those decided by the higher courts, only one has found that an employment intermediary or employment business is an employer. That is McMeechan v Secretary of State for Employment [1997] IRLR 353, which it has to be said looks odd alongside the other cases

even when bearing in mind that it had some rather unusual facts, and it is certainly arguable that has been implicitly overturned by Carmichael v National Power [1999] 4 All ER 897.

In view of all this, and in the knowledge that there are other employment status problems receiving attention as well and a major review of travelling expenses generally, we believe that the best response would be to do a holistic review of travelling expenses in the light of the bigger picture on both these two subjects, and tackle any particular problems then.

We comment in more particular detail on the document as follows:

– Page 5: the juxtaposition of businesses seeking to avoid tax with those depriving people of employment rights and the minimum wage is highly misleading. Most umbrella companies, and we would suggest all reputable ones, do not deny any employment rights and do pay the minimum wage as a wage (i.e. not as expenses). Indeed the very title ‘over-arching contract of employment’ suggests a contract that is acknowledged to give employment rights and, following on from that, to pay the minimum wage. Moreover the minimum wage is payable to all those with worker status, not just employees – something much harder to avoid. Good tax legislation will never come out of muddling the issues and regrettably this kind of approach exhibits that.

– The example of Sarah at the top of page 11 is only correct if she goes on to do another assignment for the same employment intermediary.

– Contrary to what is stated in paragraph 21, salary sacrifice schemes are very unusual with umbrella companies, except where attempts are being made to circumvent minimum wage legislation (in which case as noted above HMRC ought to have sufficient powers under that legislation to take whatever action is necessary). The normal model is to pay a basic salary of the minimum wage and anything else that is paid on top of that is a discretionary bonus. Salary sacrifice is largely a red herring in the context of OAC expenses.

– The statement in paragraph 22 that the fee due to the umbrella company can be greater than the value of the travel and subsistence tax relief that the workers are able to claim ignores the point that running a payroll is an economic function that has to be paid for. If these people were to go on to temporary agency contracts they would not get the same rate of pay as the agency would then need to pay for the running of its payroll; it would therefore reduce it.

– The position on pay day by pay day models (paragraph 28) is one of some confusion, not made any better by HMRC’s published statements on them being unclear what they are intending to counteract (they could do with some examples, both at the minimum wage level and above). The ‘salary-plus-bonus’ model described in the preceding paragraph is not a pay day by pay day model in legal terms, but the way that the bonuses are calculated may well make it look like one in economic terms. The result is that umbrella companies all genuinely think that they are not operating pay day by pay day models when the reality is that they might be, and are certainly much closer to them then they genuinely believe.

– We do not agree with the assertion in para 45 that those who do not claim expenses will find themselves in a worse condition than if they had been hired on a more common employment business contract, for the reasons stated above – viz. that running a payroll has to be paid for and so their rate of pay would be reduced to compensate for this.

– Para 49: we emphatically do not agree that individuals are liable to potentially large claims of tax if their employers’ practices are not compliant with tax rules. Unless there is collusion between employer and employee or an innocent error, the PAYE regulations are absolutely clear HMRC can only collect such shortfalls off the employer. It is highly regrettable that HMRC does sometimes attempt to collect the shortfall from employees, many of whom are low paid: this practice is illegal and oppressive and ought to be stopped.

– Para 70: one result of this would be that people whose work is essentially itinerant, such as meter readers, would not get any travel expenses relief if they worked through employment intermediaries (which many of them do). This would be very unjust – they are not well paid and travel enormous distances. This would also be a case where mutating form an employment intermediary to a meter reading company would be relatively easy. They may be a special case but it is one that shows the difficulty of legislating in this area.

– Para 72: the aim of keeping secondments out of the regime will be its Achilles’ heel. Many umbrella contracts are secondments in all but name as it is: it would take very little in the way of drafting to make what is implicit explicit.

– Para 73: it will be very difficult to legislate to bring PSCs into this framework. A PSC director does not generally have any employment contract at all, but is brought within the PAYE regime by being an officer of the company. In order to bring PSCs in it will be necessary to come up with a definition of a PSC: something which can be virtually guaranteed to attract attempts at circumvention. On the other hand if that is not done the rules will deny travel expenses to all company directors, which cannot be the intention. PSCs will find it much easier than umbrellas to maintain that their directors are not ‘supplied’ to end-users, so rendering any legislation ineffective. Again there is a fine line between an employment intermediary and a consulting company here.

– Para 74: this is a very substantial risk and one which will make it much more difficult for HMRC to keep up with what is going on and enforce compliance. That alone strikes us as a very good reason for not legislating any more in this field.

Our answers to the document’s questions are as follows:

Question 1: Do you agree with our description of an OAC?

Yes, subject to the caveat mentioned above that we do not accept that they are necessarily contracts of employment at all.

Question 2: Do you agree with our description of how OACs are used? Are there variations which we haven’t covered here?

Yes, subject to what is said above, and we are not aware of any other models.

Question 3: Do you agree with our description of why OACs are used? What is the main motivation for using an OAC? Are there any other reasons not described here?

We think that the main motivation is to reduce tax bills: without this most umbrella companies would not be viable. However there are other reasons, such as the desire to avoid giving away employment rights, the desire of employment businesses not to get involved in payroll work, and the convenience to workers of having all their tax administration done by one party.

Question 4: On which of these reasons would you place most weight in explaining the recent increase in the use of OACs?

This is largely driven by legislation making other business models less attractive, as noted above.

Question 5: Do you have any other comments? For example, do stakeholders agree that it is unfair that workers engaged through OACs with employment intermediaries get access to travel and subsistence relief whilst others in similar circumstances don’t?

We do agree that this is unfair but do not see any ready solution to this. In a world where the dividing line between those entitled to claim travelling expenses and those not so entitled is arbitrary, some unfairness is unavoidable.

Question 6: Do you have any evidence on the extent of the usage of OACs by employment businesses?

We have no direct evidence but this is probably low. Employment businesses on the whole do not want to get involved in payroll work which they regard as a distraction.

Question 7: Do you have any further evidence of the recent trends in the use of OACs? 18

They have increased significantly as a result of the onshore employment intermediaries legislation that came into force in April 2014: as a result of this a large number of formerly self-employed construction (and other) workers are now on OACs.

Question 8: Do these differ between umbrella companies and employment businesses?

We have no evidence either way on this.

Question 9: Do you expect the prevalence of OACs to increase in the near future?

This depends a great deal on future legislation in other areas. If other business models are made unattractive then OACs will increase.

Question 10: Which income groups do you expect will be the greatest users of OACs in the future?

Mainly those paid between £10 and £20 an hour. For those paid below £10 an hour it is not really economic to use OACs which are an extra link in the chain that needs to be paid for; for those earning over £20 a PSC would be more popular. This is not industry-specific.

Question 11: Do you have any evidence on the extent of any competitive distortions created by misuse of the tax rules through OACs and other schemes noted in this document?

See the narrative above.

Question 12: Do stakeholders agree there is a strong case for the government legislating to restrict tax relief for travel and subsistence in these circumstances?

No, because of the risks of circumvention and the unintended knock-on effects.

Question 13: Do you have any evidence on the likely impact of option 1? Do you think any particular sectors will be affected more than others?

See the narrative above. We think that this will have only a limited effect and lead to the incorporation of a large number of PSCs.

Question 14: Do you have any evidence on the likely impact of option 2? Do you think any particular sectors will be affected more than others?

As with 13.

Question 15: Are there particular groups of people who will be significantly worse off if tax relief was restricted?

People across the board will be worse off, but proportionately principally those paid above, but not much above, the minimum wage. These are some of the people who can least afford it.

Question 16: Are there examples of where Option 1 or 2 may affect cases where it is fair that tax relief should apply?

This depends on how the legislation is framed, but if it to be at all effective there almost certainly will be.

Question 17: Do you think the removal of relief for travel expenses under option 1 should be extended to PSCs?

No. Although it will stop the incorporation of inappropriate PSCs the consequences may well be even worse. There will be attempts to circumvent the description of a PSC (whatever it might be) that can be expected to catch on, leaving people in a situation where they think that their companies are not PSCs when in fact they are. In this part of the market there is bound to be an abundance of misinformation and HMRC will not be able to keep up with events.

Question 18: Do you have any other suggestions, including broad based T&S reform as part of the T&S review announced at Budget 2014, for how the identified unfairness could be removed?

We think that broad based T&S reform is the best approach moving forward

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OnFebruary 16, 2015, posted in: Articles, Company Tax, Employment, IR 35 by

Autumn statement submission: David Kirk calls for the abolition of employers’ NI.

The Treasury has asked for original and innovative ideas to be included in the Autumn Statement (see David Kirk submitted the following.

I understand that the Treasury is seeking original and innovative ideas for the Government’s Autumn Statement. As to my credentials for this proposal, I am a Chartered Accountant and Chartered Tax Adviser who specialises in payroll taxes (PAYE and NI) and employment status.

I should like to propose the abolition of Employer’s National Insurance, and the replacement of the lost income by a higher rate of Corporation Tax. I do not know how much it would be necessary to put the Corporation Tax rate up by, as I do not have access to the figures, but my guess would be about 3%.

Employer’s NI is a tax on jobs, and this would give a real incentive to employers to hire more people. It also distorts the tax system, by encouraging people to reclassify themselves as self-employed (both genuinely where it makes no commercial sense to do so, and falsely), or to set up companies and either avoid or evade the intermediaries provisions known as IR35 – which are far more about NI than they are about Income Tax. Corporation Tax by contrast does not distort the tax system, and has the added advantage of being paid by businesses that have made a profit, and so (presumably) are in a position to pay it.

The distortions caused by Employers’ NI are huge. As an example (these are 2013-14’s figures – I have not reworked them but this year’s will not be far different) an employed person earning £25,000 a year will pay £5,182 in income tax and National Insurance, leaving him with £19,818 to take home. His employer will also have to pay £2,388 in National Insurance, meaning that the total cost of employing this person will be £27,388. If this company were to spend £27,388 to procure an independent contractor to do the same work, that contractor would not only receive more but would pay less in tax. He would be in pocket to the tune of £21,891. If the contractor were then to incorporate his business, he could get out of National Insurance altogether and end up with £23,450.

With differences like this, it is not surprising that there has been a rush to self-employment and incorporation over recent decades. There are benefits for employers too: not only can they lower the rates and recoup some of the difference for themselves; there are also a great many employees’ rights that independent contractors do not have and that they, the employers, therefore cannot get sued for. Also, the fact that the self-employed are responsible for their own tax attracts to this status the kind of disreputable people who have no intention of paying their fair share. Nor is it surprising that some of this purported self-employment is bogus. The combination of economic and fiscal pressure for self-employment and a very hazy grey area makes this inevitable. The courts are always on the look-out for a sham, but it has to be said that they rarely find one.

Governments have gone to some lengths to combat this, with the agency rules (1977), IR35 itself (2000), the managed service company rules (2007), and now the onshore and offshore intermediaries rules. It has to be said that not all of these efforts have been notably successful. Sometimes other tax changes inadvertently make incorporation of one-man bands more attractive, such as the abolition of Advanced Corporation Tax in 1999.

Corporation Tax, by contrast, does not distort the tax system, particularly when (as now) it is levied at the same rate as basic rate Income Tax. A move from one to the other would take away

considerable incentives to play the system. It could also simplify Government finances quite a bit.

How then could the revenue from employer’s NI be replaced? From what I can see Employer’s NI is paid principally by the following types of employer:

Central government

– this is effectively circular money: the various departments and agencies would simply get their allocations cut by the amount of NI they would be saving.

Local government

– as local government is largely financed by central government the same could apply here: it could get its grants cut by a corresponding amount;


– much charity work is also financed by government (central and local, but I suspect largely central), and grants could be cut accordingly. To the extent that it is financed by outside sources this would represent increased income for the charities, which could be defended on policy grounds.

Companies –

these would pay a higher rate of Corporation Tax to compensate. I would suggest that the aim should be to present this change as revenue-neutral.

Partnerships and LLP’s –

these would gain from this measure. However partners in the larger partnerships (where most of the NI would come from) will pay higher rate or additional rate tax, and so a noticeable proportion of the money saved would come back via tax on increased profits: this could also be defended on policy grounds as these partnerships will anyway be paying higher rates of tax on their profits than companies who may be their direct competitors.

Individuals –

these will also gain – however most of these will be in business and so the same considerations will apply as with partnerships. At the micro level the Employment Allowance has already taken many businesses out of Employers’ NI.

One other point to note is that employers’ NI contributions are not allocated to the account of any individual, unlike the corresponding employees’, so there are no considerations of people losing benefits as a result. Also, the absence of Employer’s NI will make it easier to align Employees’ NI with PAYE, which I understand is a policy objective of the Government.

I do understand that the Government places much store on the headline rate of Corporation Tax and will be wary of seeing this fall below 20% when so much effort has been made to get it down to that level. In my view the possibility of being able to advertise to inward investors that there are ‘no payroll taxes for employers here’ would far outweigh any damage that might be done by seeing the headline rate of Corporation Tax rise.

Back in the 1980’s Nigel Lawson aimed to abolish (and generally succeeded in abolishing) a tax in each budget. This proposal would enable the Chancellor to pick up that mantle

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OnOctober 13, 2014, posted in: Articles, Company Tax by

Why cant I go on the CIS

It is a common misconception that anyone working in the construction industry can decide for himself whether he can go ‘on the tools’ (i.e. be paid as self-employed under the Construction Industry Scheme) or ‘on the books’ (be paid as employed under PAYE).  No more can the construction company decide for itself which it is to be.
There are a number of tests to decide which it is to be, but the personal preferences of the individual worker and the company do not come into it.  Rather, the correct categorisation is decided by the nature of the relationship between the two.  Whole books have been written on this subject, but you can get a long way by asking yourself:
– Are you expected to complete a particular job (such as to build a wall or make a staircase)?  If so you are probably self-employed and can go on the CIS.
– Are you expected to know how to do the job asked of you, or does someone tell you how to do it?  If you require no supervision and get none, you are likely also to be self-employed.
– Are you there to do what the boss asks you to do between the time you start and the time you finish?  If so you are probably employed and should go on PAYE.
However these are only indicators.  Specialist advice will almost always be needed if you have a dispute about it.
David Kirk FCA CTA is a freelance tax consultant specialising in the intermediary sector.  He can be obtained on 0845 519 5041 or at

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OnFebruary 20, 2014, posted in: Articles by