By Alex Ruffel (Partner) and Tom Barber (Solicitor) at Berkeley Law
The forthcoming election has brought the tax affairs of “non-doms” into the headlines. The Labour Party has said that, if elected, it “will abolish non-dom status”. The Conservative party has not addressed non-dom status directly but there are indications that, while it values the contribution of non-doms to the UK economy, it may take steps to tighten up the rules.
The domicile confusion
Domicile is not a tax rule but a concept of English common law that is commonly defined as ‘permanent home’. It is relevant in many legal areas. For example, it determines which country’s inheritance laws apply to a UK bank account on the death of the holder.
In English law, every individual is deemed to have a domicile. The starting point is that they inherit their domicile from their father (or mother if their parents are unmarried). Assuming their father does not change his domicile, the individual generally continues to have this original domicile unless they move to another country and form the intention to make it their permanent home. That country then becomes their ‘domicile of choice’.
Tax law is one of the areas that uses the concept of domicile. The “non-dom tax regime” is most commonly used as a shorthand to describe the remittance basis of taxation, a set of income tax and capital gains tax rules only available to those who are resident but not domiciled in the UK (“RNDs”).
Domicile also affects inheritance tax. Individuals domiciled in the UK pay inheritance tax on their worldwide assets, whereas those domiciled outside the UK are only subject to inheritance tax on their UK assets. There is a ‘deemed domicile’ rule for inheritance tax: individuals who are UK resident in 17 out of 20 tax years are treated as UK domiciled for these purposes only.
The remittance basis
The default position for UK residents is that they pay UK tax on the arising basis, meaning that their worldwide income and capital gains are subject to UK tax.
An RND is taxed on the arising basis but can choose to be taxed on the remittance basis instead. Under this regime, the RND will be liable to UK tax on:
- Income and capital gains that come from the UK (e.g. salary from a UK job and profits from the sale of UK property)
- Income and capital gains that come from outside the UK that they enjoy in the UK. These are referred to as ‘remitted’.
If they claim the remittance basis, the RNDs are not liable to pay UK income and capital gains tax on non-UK income and gains that they do not remit to the UK.
After 7 years’ residence in the UK, RNDs must pay a charge (in addition to any tax due) to use the remittance basis. The charge ranges from£30,000 to £90,000 per year, depending upon how long the RND has been resident.
Will there be a replacement for the remittance basis if it is abolished?
No one knows. The Labour Party has said it would consult on the detail of new rules for temporary residents but we have no more detail at present.
We assume that personal taxation would be based on residence only. A system based on nationality is very unlikely. The removal of the link between domicile status and tax would also potentially take large numbers of UK expats out of inheritance tax and there would need to be serious consideration of this and similar consequences that appear to have been overlooked so far.
Is there a problem with the remittance basis?
There has been a large amount of sometimes confused and ill-informed comment about the remittance basis but it boils down to some key points, some of which are, in our opinion, cogent and others that are not.
The rules are a “set of loopholes”
They are not. Tax loopholes are ways of minimising tax that are inadvertently created by legislators or draftsmen. The remittance rules have been deliberately created and preserved by Parliament.
The rules are used by those they are not designed for
It appears to be accepted that, even on the current rules, the remittance basis should be available to those who are from outside the UK and intend to be in the UK for a limited period. Critics of the current system say that it is used by “those who by any normal standards are British”.
In our view and experience, this is possible but not common and is at least partially due to handling by HMRC. Lately they have shown particular tenacity in refusing to accept claims to non-UK domicile by Britons who move abroad permanently. This cuts both ways: if it is difficult for an Englishman to lose his UK domicile, then it must be equally difficult for an Australian to lose his Australian domicile if he lives in the UK.
A second allegation is that it is possible for a person with an English domicile to live outside the UK for a while, claim non-UK domicile and then move back to the UK and use the remittance basis for years. In our experience, this is virtually impossible.
In our view, the fact that domicile has become so difficult to change has thrown up some unsatisfactory situations. These could be resolved by setting the length of time for which the remittance basis could be claimed after starting UK residence. We suggest the same deemed domicile rule as applies for inheritance tax. To avoid possible retrospective effects, the rule should apply to those becoming UK resident after a future date or allow a suitable transition period.
The existence of separate sets of rules for different types of UK resident is unfair or immoral
The question of whether tax law has a moral aspect is a quagmire in which better people than us have drowned but in the context of the remittance basis, the views seem to boil down to:
- The existence of the remittance basis attracts wealth-producers and contributes a large amount to the UK economy by way of tax and economic activity, which means that UK taxpayers need to contribute less or can receive more. That makes it beneficial and worth preserving even if it is inconsistent;
- The existence of the remittance basis means that not everyone is playing by the same rules, which is iniquitous. All UK residents should be subject to the same rules and foreigners who want to come to live in the UK must accept that is the cost of doing so;
- The remittance basis costs the UK money instead of making it and should be abolished purely on those grounds.
The remittance basis costs the UK “hundreds of millions of pounds”
There is much disagreement about this. We cannot say whether the various statistics that are bandied about are true but only comment based on our experience.
In our view the remittance basis does not cost the UK money but makes a lot of it.
The cost of claiming the remittance basis for a person who has been resident in the UK for at least seven tax years is up to £90,000 per year. In the 2012-13 (when the limit was £30,000), this group comprised 5,100 people who paid a total of £226 million to the public purse in order to pay tax on the remittance basis. This does not include the UK tax they paid on their UK income and gains and remittances to the UK or other taxes they pay in the UK such as VAT and SDLT. It is a fundamental misconception that the fee paid for the privilege of claiming the remittance basis represents the total tax bill paid by that individual in the UK for any given tax year.
If the remittance basis is abolished, RNDs who currently pay to use the remittance basis would not start paying UK tax on the whole of their worldwide income and capital gains. By definition, such RNDs have significant interests in other countries that impose their own tax. This would either prevent UK tax being payable or significantly reduce the amount that the UK would receive if the remittance basis was abolished. Some tax would become payable but it should not be assumed that would it simply be equal to a proportion of the global earnings of those who currently use the remittance basis
The UK benefits from opening up its economy to outside investors. The availability of the remittance basis of taxation has been a significant draw. In our view it is unlikely that there would be an exodus of RNDs immediately if the remittance basis was withdrawn but there would be a gradual drift away. What is more worrying is that those who would previously have considered the UK as a place to live, and would have benefitted the UK economy, will turn away, taking their business and taxes to a jurisdiction that wants them.
No one else has system like the UK’s
All countries’ tax systems are different: France has a wealth tax, the UK does not; New Zealand has no inheritance tax, the UK does. International comparisons of tax systems are not particularly helpful.
Does the UK need a favourable tax regime for any of its residents?
The abolition of the remittance basis would probably lead to a discussion of whether it is desirable to compete for internationally mobile individuals and if it is, what incentives should be offered to them.
The fact that there are more billionaires living in New York than London, despite the fact that the US taxes residents on their worldwide income, has been cited to show that tax incentives like the remittance basis are not required.
There are differences: the US is the largest economy in the world and represents around 22% of global GDP. Within the US, there is also huge competition amongst states for economically attractive residents. The UK represents around 3.7% of global GDP. Itis part of the EU and its borders are porous. It competes, as a global financial hub, with Dubai, Singapore and Hong Kong, none of which tax an individual’s offshore investment income. Closer to home, the financial hubs in the EEA either offer an incentive for temporary residents, i.e. Belgium, Holland and Switzerland, or are largely focused on the domestic market i.e. Paris and Frankfurt.
So what should be done?
The remittance basis is an incentive to attract wealthy individuals. The fact that it has sometimes been misused and is not an universally accepted method of levying tax should not automatically lead to its demise.
What the last 10 years has shown is that there has not been a coherent strategy of reforms of UK personal tax nor a stated goal. Instead there has been a drip feeding of new rules, with the occasional forced backtracking, to see if revenue can be raised and votes won. This sends mixed messages about the UK’s tax and political system and can occasionally create very sharp edges.
What we would welcome is a genuine discussion of how to reform the UK’s over-complex UK tax system, which creates genuine loopholes that do actually lose the UK hundreds of millions of pounds. We suggest that the goal should be to create a stable and clear set of rules that are fit for a UK that is open to the internationally mobile individual and global businesses and is an active and important part of a growing global economy.
Is cash now redundant in western society?
By Daumantas Dvilinskas, CEO and Co-Founder of TransferGo
Research from UK Finance has shown that cash consisted of less than a quarter of all payments in 2019, suggesting that as a method of payment, it was already on the decline before the pandemic struck. Evidently, this means that current negative attitudes towards cash have been compounded by COVID-19 and no doubt suggest that fears are growing over how the use of physical currency could be a possible vehicle for virus transmission. In turn, this has caused a shift in consumer behaviour with those stuck at home turning to digital as the only way to spend, send and save money.
But if the usage and popularity of cash was already on the decline – what factors were driving this? Primarily, it’s been a shift in consumer behaviour towards online shopping, and the increasing speed and convenience offered to end users by contactless payments and new services in the fintech market. An example of the latter is in digital money transfer services, which facilitate the flow of money across borders but without the added fees and hidden exchange rates traditional cash-based businesses have.
But what impact will this behavioural shift have on our society, and what does this mean for the finance industry?
The finance industry’s response
With the pandemic bringing country-wide lockdowns, consumers were forced to turn to digital as trips to banks and post offices to make deposits or collect banknotes became inaccessible. Fintechs, who are digital by default, were particularly well placed to support customers by allowing them to send and spend funds by facilitating online transactions through digital payment services.
Additionally, digital lending firms, who were able to move fast in response to the surge in loan applications as a result of redundancies and businesses shutting down, were much more nimble than physical branches and traditional financial institutions. And the demographic of users has widened too, with digital lending platforms seeing not just tech savvy users, but older users in their 40s and 50s turning to their services.
Prior to the pandemic many people, for reasons such as lack of trust, being technophobes or just being creatures of habit, were hesitant to use digital finance services over cash. We expect to see a continued reversal of that as consumers get used to the ease and accessibility that fintechs have bought to the sector.
Remittance sector has already proved that cash wouldn’t reign supreme
This issue of cash vs digital is especially prevalent amongst the migrant worker community. Migrants are often relied upon by their families for income support, and in some cases are the sole source of income. For example, in 2019 remittances amounted to $554bn according to the World Bank, beating all other forms of cross-border financial flows to poor countries.
Alongside the lockdown, we also had to deal with the issue of closed borders, which prevented migrants arriving home with actual cash. Combine that with the closure of most retail finance operations, options for sending physical cash were basically eliminated. Workers therefore needed to find other ways of ensuring their hard earned money could get to those that needed it at home. Digital finance bridged the gap.
Through the benefits of digital, providers can offer guaranteed and fair exchange rates, ensuring that migrants, who may be undergoing financial difficulties, are not stung by hidden remittance fees. They can also provide consistent and accessible support, for example by offering in-country agents who understand local discourse and issues and can help find appropriate solutions. What’s more, these services can offer a seamless customer experience, increased service reliability and perhaps most importantly security. For example, TransferGo recently announced a partnership with end-to-end ID verification companies SumSub and Veriff, which ultimately means that migrants are able to have their identity verified, quickly and reliably, preventing fraudulent activity, without causing a delay to registering for and using the service.
Was this a result of the pandemic or is cash truly on its last legs?
COVID has undoubtedly caused a huge shift in consumer propensity to use cash. Findings suggest over half of consumers had used digital transfers to give money to friends and family at least once during the first month of lockdown, with 20% doing so more than twice. When you consider that cross border payments are expected to hit $240 billion by 2024 due to an increasingly global and interconnected economy and TransferGo experienced a 63% growth in transactions in April compared to the same time last year, the future is seemingly evident.
The convenience, speed, improved customer experience and security offered to consumers through digital payments will be difficult to surrender – especially as people become accustomed to new ways of working and living.
At the current pace of technological innovation, I can’t help but feel that this is the irreversible direction of travel. It is incumbent on those of us at the sharp edge of innovation in the industry to ensure it remains secure and fit for purpose as the world continues to change around us.
FRC’s audit enforcement – more remedial action for auditors?
With recent accounting scandals such as Wirecard, we’re seeing a continuing focus on the role of auditors in detecting fraud and, the importance of confidence in the audit process for corporate reporting.
The Financial Reporting Council (FRC), principal regulator of the profession (and accountants in business), recently published its Annual Enforcement Review 2020. It analyses its enforcement actions and outcomes across the past 12 months, identifying key themes and issues, and sets itself performance objectives for the year ahead.
One of the notable themes coming out of the Review is the FRC’s greater focus on the use of remedial action and non-financial sanctions as a means of driving audit quality within audit firms. It seems to us a sensible development.
Despite being criticised for not being tough enough on audit firms (total fines have come down this year, although the trend of fines in individual cases is on the rise), the FRC has focused on measures aimed at achieving lasting improvements in audit quality. Heavy fines, while inevitable in the more serious cases, mark public censure but do not in themselves change practices, and ultimately can reduce a firm’s resources to invest in audit quality. Audit cases dealt with by the FRC are rarely about intentional conduct by auditors. Far more often, they relate to errors of judgement, points missed in audit work, or inadequate processes. Non-financial sanctions can be a much more direct mechanism to promote investment of time and resource into audit improvement across a firm.
FRC’s enforcement powers
The FRC became the “competent authority” for audit in the UK under the Statutory Auditors and Third Country Auditors Regulations 2016 (SATCAR), which came into force following the EU Audit Regulation and Directive. SATCAR requires that the UK has effective systems of investigations and sanctions to “detect, correct and prevent inadequate execution of statutory audit” – which led to the implementation of the Audit Enforcement Procedure (AEP).
Under the AEP, a statutory auditor and/or statutory audit firm may be liable to enforcement action where there has been a breach of the Relevant Requirements of SATCAR 2016, the EU Audit Regulation or the Companies Act 2006. This creates a very low hurdle for regulatory sanction. Any breach of any auditing standard can be sanctioned, however trivial, although the FRC has increasingly been willing to handle the more minor cases through constructive engagement.
The FRC has a wide remit of sanctions at its disposal, which can be imposed singly or in combination. Possible sanctions include permanent or temporary prohibitions on the auditor performing statutory audits or signing audit opinions; exclusion of the auditor as a member of a recognised supervisory body; financial sanctions; declarations that the statutory audit report did not satisfy the relevant requirements; requiring the auditor or firm to cease or abstain from certain conduct and ordering a waiver or repayment of client fees.
While the FRC may have a greater remit for enforcement action under the AEP than the former Accountancy Scheme, its purpose in imposing sanctions is not to punish, but to protect the public and the whole public interest. The public is after all better served by higher quality audits which lead to higher investor confidence in the company’s financial statements.
Financial sanctions will continue to have an important role in the FRC’s enforcement strategy, particularly with regard the deterrence of future breaches; however, the use of non-financial sanctions continues to increase significantly. Non-financial sanctions are used at all stages of the enforcement process, whether that is as part of its early resolution of cases via the Constructive Engagement process, settlement, or following conclusion of a Tribunal hearing.
Constructive Engagement and remedial action
Constructive Engagement is a process introduced by the AEP for resolving cases where the audit quality concerns can be addressed without full enforcement action. The FRC’s guidance provides that it will be suitable for cases where there has been a minor, technical breach, and there is no real concern about harm to the public or a loss of confidence in the audit process.
Constructive Engagement is a more flexible process, aimed at ensuring that the breach is rectified quickly, and not repeated. It may take any form including written advice, warning letters, discussions or correspondence with the auditor and/or audit firm. Unless the FRC is satisfied that the conduct leading to the breach has already been sufficiently addressed to prevent the risk of recurrence, the outcome of constructive engagement will usually be for the firm to carry out remedial actions (if a breach is identified).
The remedial actions imposed in each case are bespoke to the particular circumstances of the breach, and will often involve amendments to a firm’s audit procedures and/or training and guidance across the firm. Remedial actions are often firm wide rather than limited to the particular audit process, or team, in order to reduce the risk of reoccurrence of the conduct that lead to the breach.
The FRC dealt with 33 cases in Constructive Engagement over the past year, an increase of 73% compared to 2019.
Remedial actions were imposed in 27 of those cases, and were predominantly focused on ways audit firms could improve audit procedure and technical knowledge in problematic areas. For example, firms were required to implement measures requiring audit teams to consult with a firm’s technical team on particular issues such as:
- require enhanced work to be carried out by specialists such as tax and actuarial specialists;
- implement better procedures for communication between audit teams and specialists;
- implement additional audit procedures and training on complex areas;
- implement guidance for improving the level of documentation on the rationale for conclusions reached.
A recurring problem with FRC investigations is that they take too long. Constructive Engagement provides the FRC with the flexibility to resolve cases more quickly: the average time taken to conclude a matter through Constructive Engagements is eight months, compared to an average of 48 months for the FRC to conclude a case through to a hearing before the Tribunal. The firm can then implement the remedial actions imposed more swiftly, while the FRC can direct its resources to cases involving more serious breaches which warrant full investigation. We expect the trend towards Constructive Engagement to continue in the coming year.
Investigations resulting in sanctions
Over the past year, the FRC imposed sanctions in nine cases in relation to audit matters, 11 of which were financial, as compared to 27 non-financial sanctions. All but one of the cases resulting in sanctions in the past year was a result of settlements.
The total amount of financial sanctions on audit firms alone (pre-discount) was £15.9 million. Financial sanctions were also imposed against six audit partners, totalling £0.7 million (pre-discount). Where financial sanctions were imposed, 30-35% reductions were applied for early admissions and settlement.
The use of non-financial sanctions is clearly a key part of the FRC’s enforcement strategy. Measures imposed over the last year included increased use of reprimands and severe reprimands, requirements for firms to undertake firm wide training, requirements for firms to produce written reports to the FRC on quality performance reviews, requiring firms to implement an ethics board, and increasing the monitoring and support of regional offices.
If firms carry out enough remedial work prior to the conclusion of the matter, further non-financial sanctions may not be required.
The FRC reminds firms in this Review that a further way that they reduce any financial sanction imposed is by providing an “exceptional” level of cooperation with the FRC’s investigation, for example, by self-reporting.
The year ahead
The FRC remains in a state of flux. Following Sir John Kingman’s review in December 2018 and the Brydon and CMA Reviews in 2019, a number of recommendations have been made to the government for the overhaul of audit profession which, if adopted, will have a significant impact on the regulation of audit in the UK. The FRC itself is due to be renamed as the Audit, Reporting and Governance Authority (ARGA). There has been little progress on the legislative front however, with no shortage of recent other distractions on parliamentary time.
The FRC has been recruiting heavily, notably to increase its ability to monitor audit work, which will then feed into more cases for Enforcement. It has also conducted a review of the AEP, and a consultation on proposed amendments to the procedure is expected later this year. It will be interesting to see what changes are proposed to its enforcement strategy. Beyond that, we may see significant upheaval in audit regulation once we return to normal business.
How to prepare for the Off-Payroll legislation
By Dave Chaplin is CEO of IR35 compliance solution IR35 Shield
We now know for certain that the Off-Payroll legislation will take effect from April 2021. Whether you’re a client, an agency or a contractor, it is vital that you take steps now to mitigate against the damaging impact and costs of the new rules so that all parties can continue to enjoy the mutual benefits of flexible working. Dave Chaplin is CEO of IR35 compliance solution IR35 Shield and author of IR35 & Off-Payroll Explained and here he explains how best to prepare.
Preparing for the reform – hiring firms
The Off-Payroll legislation requires hiring firms to determine whether thousands of contractors can continue to operate as they have for decades. The new rules require hirers to conduct an IR35 status assessment of contractors and inherit a degree of tax risk depending on whether they have taken reasonable care in reaching their conclusion. However, the impact of the Off-Payroll legislation for hiring firms stretches far beyond this.
Hirers will, under these new tax rules, be required to pay the employment taxes due on the earnings of ‘inside IR35’ contractors because agencies simply won’t have the financial resources to cover these extra taxes. When you consider that roughly 80% of the additional tax now due from an ‘inside IR35’ engagement under the Off-Payroll legislation is composed of employment taxes, this is a significant cost to bear.
Inability or failure to offer contracts on an outside IR35 basis also threatens:
- Contractors increasing their rates to counter their own tax loss
- Employment rights claims from contractors deemed ‘employed for tax purposes’
- Struggles to attract talent as contractors look elsewhere for outside IR35 contracts
Firms are also required by the legislation to demonstrate ‘reasonable care’ in reaching the conclusions in their status assessments, which is actually the easiest of the challenges to overcome.
Establish your firm’s IR35 risk
The first step is to acknowledge that Off-Payroll compliance will create an ongoing administrative overhead which your firm will have to plan for, whether status assessments are outsourced or conducted in-house.
The second step is to establish your firm’s IR35 risk by assessing your contingent workers.
The significant compliance challenge posed by the Off-Payroll legislation has necessitated innovation by way of automation. Firms tasked with assessing status and maintaining compliance for vast numbers of engagements need solutions that provide immediate assessments and assistance with the more trivial tasks.
When considering online solutions, bear in mind:
- Are the Status Determination Statements (SDS) detailed and comprehensive?
- Does the solution continue to monitor ‘outside IR35’ engagements throughout the contract for added protection?
- Is the service insurance-backed?
- Does the provider have demonstrable expertise in IR35 and employment status case law?
- Are the solution’s assessments demonstrably consistent with historical IR35 tribunal outcomes?
- Can assessments be instantly turned around?
- Can the solution provide real-time tax calculations to enable hirers and agencies to understand their impact?
- Does the solution make evidence gathering easier?
It is important to establish the credentials of any provider. Almost overnight, a new market for IR35 expertise has sprung up, populated by many unqualified providers without the essential pedigree of legal expertise required.
The importance of enlisting a quality compliance solution or service provider can’t be underestimated. Remember, to gain access to the best contracting talent, you will need to engage contractors on an outside IR35 basis. It’s imperative that any chosen provider doesn’t present a risk to your organisation.
Create contracts and working arrangements that mitigate IR35 risk
Once you have established the greatest risk factors threatening the outside IR35 status of your contractors, these need to be addressed in the contracts and working arrangements. Mitigating these risks reduces the chances of contractors withdrawing from a proposed contract over IR35 status while further minimising your risk of tax liability.
The working arrangements must reflect the written contract and reality. Past tribunal cases have exposed sham contracts, the unrealistic clauses in which are often referred to as ‘window dressing’. If an engagement is firmly caught by IR35 and the proposed contractual amendments aren’t realistic in practice, you will have to accept that the position can’t be rectified.
At this stage, you will have addressed the assessment status, helping to fulfil the ‘reasonable care’ requirement while mitigating your tax liability risk if HMRC investigates. However, for stronger protection, make sure the provider you work with can offer access to insurance policies for ‘outside IR35’ determinations.
Watertight IR35 compliance practices won’t necessarily deter HMRC from fishing via an investigation, so taking out appropriate insurance will ensure that any investigation costs and liabilities required to defend an investigation by HMRC are covered.
Ongoing monitoring and evidence gathering throughout the engagement are other crucial compliance processes. With the Off-Payroll legislation effectively dictating that IR35 status assessments be conducted prior to the beginning of the contract; parties must take measures to ensure that the working arrangement continues to reflect the original status determination.
Preparing for the reform – agencies
The preparation required by recruitment agencies is two-tiered. On one hand, as the intermediary, agencies will be expected to contribute to the IR35 compliance process and help negotiate compliant outside IR35 assignments. On the other, agencies will need to identify and implement processes to calculate, pay and report taxes for contractors deemed caught by the legislation.
Though hiring firms are ultimately tasked with assessing the IR35 status of their contractors, they will rely on recruitment agencies to help develop a solution. The input of agencies into this process is especially important, given most engagements consist of two contracts, both of which the agency is involved in – the upper-level contract between the hirer and agency and the lower-level contract between the agency and contractor.
Assist in addressing IR35 risk
Though it is ultimately the hiring firm that decides the IR35 compliance processes to be applied, they may be open to recommendations. The hirer will generally have no prior experience of IR35 and will be relying heavily on the agency to help complete any negotiations. Though they wouldn’t be considered IR35 experts by any means, most recruiters will have handled requests from contractors to make IR35-friendly alterations to arrangements in the past, and so will have some degree of understanding.
All parties stand the best chance of securing a legitimately ‘outside IR35’ arrangement where there is cooperation and clarity throughout the supply chain, and where hirer, agency and contractor are all involved.
Protect yourself with insurance
Though the hirer is responsible for determining the contractor’s IR35 status, agencies face the primary tax liability risk in the event that HMRC challenges an assessment – that is unless the hiring firm has failed to take ‘reasonable care’ when conducting the status assessment. In the public sector, fears over tax liability risk left many agencies reluctant to engage contractors outside of IR35.
However, this is an unhelpful approach which benefits no one. In any case, agencies needn’t be concerned provided they have assisted in ensuring that the necessary measures have been taken to accurately assess IR35. Agencies can gain another layer of protection by securing tax investigation insurance, which provides the expertise and costs necessary to mount a strong defence in the event of an HMRC investigation.
Agencies suffer disproportionately from the Off-Payroll legislation and the issue of administrative costs is probably the most difficult to tackle fairly, which makes it all the more important that agencies play their part in negotiating legitimate outside IR35 arrangements.
Renegotiate margins to accommodate employment taxes
Finally, agencies will also have to consider the cost of employment taxes on fees paid to ‘inside IR35’ contractors and work out with the hiring firm how these are going to be accommodated. This is another liability which really shouldn’t rest with the agency. Being the party that deemed the contractor ‘employed for tax purposes’, the hirer is for all intents and purposes the ‘deemed employer’.
Nonetheless, the legislation dictates that the agency is ultimately liable. As a reminder, employment taxes consist of employer’s NICs (13.8%) and the Apprenticeship Levy (0.5%). This sum is due on top of the contract fee. This is a rather unreasonable cost for a recruitment agency to pay and will therefore need to be sourced elsewhere.
With the rate the agency charges being fixed, one option is to reduce the pay rate being quoted to the contractor. Hirers will need to understand that paying by offering a lower pay rate than before, they are unlikely to be able to attract the same calibre of worker.
The alternative is to increase the rate charged to the hirer so that they at least contribute towards this cost. This could prove awkward, and you will no doubt encounter hiring firms that are reluctant to pay more for what they see as the same resource.
Ultimately, hirers that wish to hire contractors and treat them like employees will need to accept the accompanying additional cost burden.
Preparing for the reform – contractors
Although contractors have few statutory responsibilities when it comes to the Off-Payroll legislation, choosing to take preparatory steps will impact on whether you can continue operating on an outside IR35 basis beyond April 2021. There is no tax risk for the contractor under the new rules, provided they haven’t committed fraudulent activity, but to secure an outside IR35 engagement you must play an active role in the compliance process.
The immediate threat that the Off-Payroll legislation imposes on hirers and agencies is the chance of being investigated by HMRC, and possible tax liability risk. As the public sector reforms have shown, this can prove very effective in seeing parties taking non-compliant, evasive action by conducting and facilitating blanket status assessments, so all contractors are deemed ‘inside IR35’ by default.
As a contractor, it’s your job to help prevent this, and there are plenty of reasons for the hirer and agency to fulfil their compliance requirements. The first of which is the faact that taking ‘reasonable care’ is the necessary requirement for hiring firms to rid themselves of any tax risk. In an Off-Payroll context, this essentially means taking care to ensure that you have arrived at a correct status determination. Contractors need to make everyone realise that. The message is clear – start talking to hirers now.
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