DMS Posts, Tax

An essential IR35 briefing for contractors

IR35 legislation allows HMRC to collect additional payment from contractors in certain circumstances. The way in which IR35 operates in the private sector is set to change and this could have a significant impact on many contractors across the UK. This guide provides an overview of IR35 legislation and what it means for all contractors, along with an explanation of the anticipated changes in the private sector.

What is IR35?

IR35 is a piece of legislation designed to seek additional payment from contractors who HMRC believes are working in “disguised employment”. This is when a contractor’s working arrangements and contract are similar to those of an employee but, unlike an employee, the contractor enjoys the tax benefits of working through an intermediary, such as a company or partnership. When a contractor meets the criteria of disguised employment, they are deemed to be “inside IR35” and are required to make additional payments to HMRC.

When is a contractor deemed to be “inside IR35”?

The question of whether a contractor is deemed to be inside IR35 depends on a variety of factors relating to both the contract itself and the contractor’s working practices. There are three employment tests designed to help contractors and engaging organisations make this assessment, along with a number of additional factors that HMRC takes into consideration.

The employment tests

The “direction, supervision and control” test

This test focuses on the level of autonomy given to the worker. HMRC considers contractors to have more autonomy when it comes to choosing what work they do, while employees are more likely to be assigned tasks by their employer. This does depend on the individual’s skill and expertise, however, as a highly skilled employee is likely to enjoy a greater degree of autonomy than a less experienced contractor. The “direction, supervision and control” test asks the following questions of a contractor’s working practices and the wording of the contract itself:

Direction: is the worker told how to do the job at hand?

Supervision: is the worker supervised while they carry out their work?

Control: does the engaging organisation have control over aspects of the worker’s working practices, such as their work schedule?

If the answer to any of these questions is “yes”, then there’s a chance that the contractor might be inside IR35.

The “substitution” test

The test of substitution considers whether the engaging organisation would be prepared to accept someone else to do the contractor’s work in the event of them being unavailable. If the engaging organisation would not be prepared to do this and would only accept the personal service of that particular contractor, it would suggest that a traditional employment relationship exists and that the contract could therefore be inside IR35.

The “mutuality of obligation” test

Mutuality of obligation (MOO) means that one party – the employer – is obliged to provide work and the other party – the employee – is obliged to accept it. Unlike employees, contractors have no obligation to accept work and unlike employers, the companies that contract them have no obligation to provide it. As MOO is a feature of an employment relationship, if it is present in a contract it suggests that the contract might be inside IR35. When assessing a contractor’s working practices and contract, there are certain factors that would indicate that MOO isn’t present and that an employment relationship, therefore, doesn’t exist. These include:

• the use of specific projects with set end dates

• the ability for either party to stop the work with very little notice

The ‘CEST’ checking tool

HMRC developed the Check Employment Status for Tax (CEST) tool to help contractors and the companies who engage them to check whether a contract and the contractor’s working practices fall inside or outside IR35. However, some questions were raised relating to the initial version of this tool and its exclusion of the mutuality of obligation test. An updated version of the CEST tool was released in November 2019.

Additional factors that might affect a contractor’s IR35 status

HMRC doesn’t just consider the outcome of the three employment tests when assessing a contractor’s IR35 status. It looks at a wide range of factors that might indicate that the contractor is “part and parcel of the organisation” and that a traditional employment relationship might, therefore, be in place. These factors include:

• the contractor having an email address at the engaging organisation

• the contractor having permission to use company equipment

• the contractor receiving the same company ‘perks’ as their employed colleagues

• the contractor being line managed in the same way as their employed colleagues

What are the consequences of being inside IR35?

Contractors who are inside IR35 and work through an intermediary in the private sector are currently required to declare this to HMRC. If the intermediary is a limited company, the company would add a deemed payment in the contractor’s salary and deduct tax and National Insurance accordingly. If the intermediary is a partnership, the partnership would work out the deemed payment and deduct tax and National Insurance in the same way. The partner would then report this amount on their individual Self Assessment tax return as if it were income from employment.

If a contractor fails to declare their IR35 status and HMRC challenges this in an investigation, the contractor may face a penalty. Penalties are levied as a percentage of the additional tax that the contractor is liable to pay and are determined by HMRC’s perception of the contractor’s intent and the degree to which they “failed to take reasonable care” to declare their IR35 status. If a contractor knows that they are inside IR35 but chooses not to take action, they are likely to be fined more than if they had simply made a mistake in failing to declare their IR35 status. In the public sector, the onus is on the engaging organisation to assess the IR35 status of its contractors. Anyone who the engaging organisation deems to be inside IR35 is usually brought on to the organisation’s payroll as an employee and is then taxed accordingly.

Whose responsibility is it to determine if a contractor is inside IR35?

IR35 was first introduced to all contractors in 2000. At first, it was the contractor’s responsibility to determine whether they were inside IR35 but in 2017, the government rolled out changes to IR35 rules in the public sector which put the onus on public authorities to decide whether their contractors are inside or outside IR35. In the private sector, it’s currently the contractor’s responsibility to determine if they are inside IR35. However, anticipated reforms to IR35 in the private sector mean that for large or medium-sized companies, the onus will soon be on the engaging organisation to make this assessment. It’s expected that the new rules – currently sitting in draft form in the Finance Bill 2019/2020 – will be introduced in April 2020.

Who will the new rules affect?

The new IR35 rules affect contractors who provide services to large or medium-sized companies in the private sector (defined in the draft legislation as having a turnover of more than £10.2 million and more than 50 staff) and who operate through an intermediary, such as a company or partnership.

What impact will the new rules have?

Once the new rules are introduced, if a large or medium-sized private sector company deems a contractor who is working through an intermediary to be inside IR35, the company will have a decision to make. It could either change the contractor’s working arrangements in such a way that the contractor is no longer inside IR35 or it could terminate the contract. If the company wants to continue engaging the services of the contractor, it could pay them through its payroll instead. In this scenario, the contractor would become an employee of the engaging company and would have to make the same tax and National Insurance contributions as other employees. When similar reforms were introduced to the public sector in 2017 The Register reported a “mass exodus” of IT contractors from the public sector, while other news sites claimed that IR35 had made it extremely hard for the public sector to hire for contract roles. However, a report commissioned by HMRC contradicts the news reports, claiming that the change was not substantial and that IR35 had not affected the public sector’s ability to fill contract vacancies.

DMS Posts

Late filing statistics from Companies House.

With latest figures published by Companies House showing an increase of 2% in accounts being filed late for 2018 (as compared with 2017), we thought it was worth reminding you of the fines that companies could face:

Accounts delivered late Penalty: Private company/LLP Penalty: PLC
< 1 month £150 £750
> 1 – 3 months £375 £1,500
> 3 – 6 months £750 £3,000
> 6 months £1500 £7,500

According to Companies House, 223,640 companies (4,202,044 total on register) were late to file their accounts, with the worst areas being London, Birmingham and Manchester.

DMS Posts

Government confirms implementation of pensions dashboards

The government has confirmed that the initiative to introduce a pensions dashboard will go ahead.

Pensions dashboards will allow those saving for retirement to view information from multiple pensions in one place stating that the dashboard will ‘open up pensions to millions’, and ‘provide an easy-to-access online view of a saver’s pensions’.

The Department for Work and Pensions (DWP) will bring forward legislation that will require pension scheme providers to make consumers’ data available to them through their chosen dashboard. The plan is to include State pension information as well.

Mike Cherry, National Chairman of the Federation of Small Businesses (FSB), said:

‘The government’s commitment to compel pension schemes to share data with platforms through primary legislation is particularly welcome. Some urgency is now required, and we question the three to four-year timeframe for schemes to prepare data for dashboards.’

Internet links: GOV.UK Pensions dashboard fsb press release

DMS Posts, PAYE, Tax

Latest guidance for employers

HMRC has issued the latest version of the Employer Bulletin. This April edition has articles on a number of issues including:

  • Cash Allowances, Flexible Benefits Packages and Salary Sacrifice
  • Unpaid work trials and the National Minimum Wage
  • Diesel Supplement Company Car Tax Changes to meet Euro standard 6d
  • Student Loans
  • Construction Industry Scheme – helpful reminders for contractors and subcontractors
  • Welsh rate of income tax and Scottish Income Tax.

If you have any queries on payroll matters please contact us.

Internet link: Employer Bulletin April 2019

DMS Posts

VAT Updated Valuation Table: Road Fuel Scale Charges (RFSCs) effective from 1 May 2019

The VAT road fuel scale charges are amended with effect from 1 May 2019. Businesses must use the new scales from the start of the next prescribed accounting period beginning on or after 1 May 2019.

  1. The Valuation Table sets out the new scale charges (a VAT inclusive amount). This table must be operated in accordance with the notes to the table and these are set out below.
  2. The VAT Rate Tables set out the VAT to be charged if you account for VAT on an annual, quarterly or monthly basis.

1. Valuation table

Description of vehicle: vehicle’s CO2 emissions figureVAT inclusive consideration for a 12 month prescribed accounting period (£)VAT inclusive consideration for a 3 month prescribed accounting period (£)VAT inclusive consideration for a 1 month prescribed accounting period (£)
120 or less59214749
12588622273
13094723678
135100425083
1401,06626587
1451,12328093
1501,18429698
1551,241310103
1601,303325107
1651,360340113
1701,421354117
1751,478369122
1801,540384128
1851,597399132
1901,658414137
1951,715429143
2001,777444147
2051,834458152
2101,895473157
2151,952487162
2202,014502167
225 or more2,071517172

Where the CO2 emission figure is not a multiple of five, the figure is rounded down to the next multiple of five to determine the level of the charge.

For a bi-fuel vehicle which has two CO2 emissions figures, the lower of the two figures should be used.

For cars which are too old to have a CO2 emissions figure, you should identify the CO2 band based on engine size, as follows:

  • If its cylinder capacity is 1,400cc or less, use CO2 band 140
  • If its cylinder capacity exceeds 1,400cc but does not exceed 2,000cc, use CO2 band 175
  • If its cylinder capacity exceeds 2,000cc, use CO2 band 225 or more

Please see the notes to the Valuation Table for more details.

Notes to the Valuation Table

  1. For a car of a description in the first column of the valuation table, the value on the flat-rate basis of all supplies of road fuel made to any one individual in respect of that car for a prescribed accounting period is the amount specified under whichever of the second, third or fourth columns corresponds with the length of the prescribed accounting period.
  2. Where a CO2 emissions figure is specified in relation to a car in a UK approval certificate or in a certificate of conformity issued by a manufacturer in another member state corresponding to a UK approval certificate (“corresponding certificate of conformity”), the car’s CO2 emissions figure for the purposes of the valuation table is determined as follows:
    • if only one figure is specified in the certificate, that figure is the car’s CO2 emissions figure for those purposes
    • if more than one figure is specified in the certificate, the figure specified as the CO2 (combined) emissions figure is the car’s CO2 emissions figure for those purposes
    • if separate CO2 emissions figures are specified for different fuels, the lowest figure specified, or, in a case within sub-paragraph (b), the lowest CO2 (combined) emissions figure specified is the car’s CO2 emissions figure for those purposes
  3. For the purpose of paragraph 2, if the car’s CO2 emissions figure is not a multiple of 5 it is rounded down to the nearest multiple of 5 for those purposes.
  4. Where no UK approval certificate or corresponding certificate of conformity is issued in relation to a car, or where a certificate is issued but no emissions figure is specified in it, the car’s CO2 emissions figure for the purposes of the valuation table is:
    • 140 if its cylinder capacity is 1,400 cubic centimetres or less
    • 175 if its cylinder capacity exceeds 1,400 cubic centimetres but does not exceed 2,000 cubic centimetres
    • 225 or more if its cylinder capacity exceeds 2,000 cubic centimetres
  5. For the purpose of paragraph 4, the car’s cylinder capacity is the capacity of its engine as calculated for the purposes of the Vehicle Excise and Registration Act 1994.
  6. In any case where:
    • in a prescribed accounting period, there are supplies of fuel for private use to an individual in respect of one car for a part of the period and in respect of another car for another part of the period
    • at the end of that period one of those cars neither belongs to, nor is allocated to, the individual, the flat-rate value of the supplies is determined as if the supplies made to the individual during those parts of the period were in respect of only one car
  7. Where paragraph 6 applies, the value of the supplies is to be determined as follows:
    • if each of the 2 or more cars falls within the same description of car specified in the valuation table, the value specified in the valuation table for that description of car applies for the whole of the prescribed accounting period
    • if one of those cars falls within a description of car specified in that table which is different from the others, the value of the supplies is the aggregate of the relevant fractions of the consideration appropriate for each description of car in the valuation table “The relevant fraction” in relation to any car is that which the part of the prescribed accounting period in which fuel was supplied for private use in respect of the car bears to the whole of that period.
  8. “CO2 emissions figure” means a CO2 emissions figure expressed in grams per kilometre driven.
  9. “UK approval certificate” means a certificate issued under either:
    • Section 58(1) or (4) of the Road Traffic Act 1988
    • Article 31A(4) or (5) of the Road Traffic (Northern Ireland) Order 1981

2. VAT rate tables

Annual charges

CO2 bandVAT fuel scale charge, 12 month period (£)VAT on 12 month charge (£)VAT exclusive 12 month charge (£)
120 or less59298.67493.33
125886147.67738.33
130947157.83789.17
1351,004167.33836.67
1401,066177.67888.33
1451,123187.17935.83
1501,184197.33986.67
1551,241206.831,034.17
1601,303217.171,085.83
1651,360226.671,133.33
1701,421236.831,184.17
1751,478246.331,231.67
1801,540256.671,283.33
1851,597266.171,330.83
1901,658276.331,381.67
1951,715285.831,429.17
2001,777296.171,480.83
2051,834305.671,528.33
2101,895315.831,579.17
2151,952325.331,626.67
2202,014335.671,678.33
225 or more2,071345.171,725.83

Quarterly charges

CO2 bandVAT fuel scale charge, 3 month period (£)VAT on 3 month charge (£)VAT exclusive 3 month charge (£)
120 or less14724.50122.50
12522237185
13023639.33196.67
13525041.67208.33
14026544.17220.83
14528046.67233.33
15029549.17245.83
15531051.67258.33
16032554.17270.83
16534056.67283.33
17035459295
17536961.50307.50
18038464320
18539966.50332.50
19041469345
19542971.50357.50
20044474370
20545876.33381.67
21047378.83394.17
21548781.17405.83
22050283.67418.33
225 or more51786.17430.83

Monthly charges

CO2 bandVAT fuel scale charge, 1 month period (£)VAT on 1 month charge (£)VAT exclusive 1 month charge (£)
120 or less498.1740.83
1257312.1760.83
130781365
1358313.8369.17
1408814.6773.33
1459315.5077.50
1509816.3381.67
15510317.1785.83
16010717.8389.17
16511318.8394.17
17011719.5097.50
17512220.33101.67
18012821.33106.67
18513222110
19013722.83114.17
19514323.83119.17
20014724.50122.50
20515225.33126.67
21015726.17130.83
21516227135
22016727.83139.17
225 or more17228.67143.33
DMS Posts

Advisory Fuel Rates from 1 March 2019

The advisory fuel rates are changing from the 1st March 2019.

These rates apply to employees who claim back fuel expenses when using a company car.

The previous rates can be used for up to 1 month from the date the new rates apply.

Engine sizePetrol – amount per mileLPG – amount per mile
1400cc or less11 pence7 pence
1401cc – 2000cc14 pence8 pence
Over 2000cc21 pence13 pence
Engine sizeDiesel – amount per mile
1600cc or less10 pence
1601cc – 2000cc11 pence
Over 2000cc13 pence

Hybrid cars are treated as either petrol or diesel cars for this purpose.

Advisory Electricity Rate
The Advisory Electricity Rate for fully electric cars is 4 pence per mile.
Electricity is not a fuel for car fuel benefit purposes.

DMS Posts

Loans to employees

A reminder that if your business makes a loan to your employees or their relatives this can create tax problems for both employees and employers.

And please don’t forget that the term “employee” includes directors, and also that loans to family members may be caught. 

For example, the employer will have an obligation to report a beneficial loan to HMRC (and pay Class 1A NIC) and the deemed benefit would be a taxable benefit in kind for the relevant employee.

A beneficial loan is one that is interest free or the rate charged is below the “official rate” and the benefit is the difference between these interest rate charges. 

Fortunately, not all loans create a tax problem, certain loans are exempt from this reporting obligation. These could include loans employers provided:
•    in the normal course of a domestic or family relationship as an individual (not as a company you control, even if you are the sole owner and employee),
•    with a combined outstanding balance due from an employee of less than £10,000 throughout the whole tax year,
•    to an employee for a fixed and never changing period, and at a fixed and constant rate that was equal to or higher than HMRC’s official interest rate when the loan was taken out – the official rate for 2018-19 is 2.5%,
•    under identical terms and conditions as those provided to the public (this mostly applies to commercial lenders),
•    that are ‘qualifying loans’, meaning all the interest charged to the loan account qualifies for tax relief.
Loans written off also create a National Insurance Class 1 charge for the employee.

They must be reported on a P11D and the employer has an obligation to deduct and pay Class 1 NIC from the employee’s salary, on the amount written off for tax purposes.

Calculating the taxable benefits for chargeable loans can be somewhat complex and readers are advised to take advice if they are unsure of their tax and NIC responsibilities.