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Can contractors working on contracts inside IR35 still work through a limited company?

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Written by Caunce O'Hara
Last updated January 22, 2021
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The off payroll working rules, known as IR35, will finally be rolled-out into the private sector on April 6th, 2021. The impending changes have forced many contractors working through Personal Service Companies (PSCs) to rethink their position.

A contractor who undertakes an engagement deemed “inside” or “caught by” IR35 through their PSC will have tax & NICs deducted at source from their fees. This means that when their invoice is paid, they will receive a net amount because the employment taxes have been deducted by the fee payer (the entity which pays the PSC) and paid across to HMRC as part of the fee payer’s payroll.

Go a whole tax year on this basis and the whole of the PSCs fee income has been accounted for as either taxation or net pay. There is no profit or loss, so how does the contractor account for their running expenses of their business? The answer is that the contractor will be paying for their accountancy fees, insurances and other expenditure out of their own pocket.  It simply won’t be worth trading through your limited company.

We saw this impact in the public sector when the changes were introduced in April 2017 with many contractors closing their companies and returning to employment and or some form of PAYE arrangement. The private sector will be no different.

However, contractors were also impacted by the reaction of some public sector bodies which has also become a feature in the private sector – particularly in banking and financial services – and that was an effective ban on engaging contractors operating through PSCs. What this has meant for contractors is that they are left with four PAYE options:

  • Take a staff job
  • Take up a Fixed Term Contract
  • Became an agency employee
  • Became engaged through an umbrella company (albeit some end clients don’t want to engage contractors via that option either)

If end clients are limiting the PSC engagements and being engaged on ‘inside’ contracts via your PSC has limited appeal, when will operating through a PSC viable option after April 5th?

 

Where there is a realistic proposition of an ‘outside’ engagement

Whilst many end clients may feel that side-stepping IR35 by refusing to engage PSCs has the benefit of reduced administration and mitigates the risk of making incorrect IR35 determinations, many end clients will be engaging with the new legislation and offering outside IR35 engagements.  Even if your first engagement of the 2021/22 tax year is deemed inside, you may not want to close your company, even if you choose not to be engaged through it on that assignment.  The future may well hold engagements that are outside and you can use your PSC for those.

That is not just blind optimism, but the knee jerk reaction of some end clients to avoid PSCs may come back to haunt them if they start losing the best talent.  There was a similar response in the self-employment arena a few years ago following the introduction of the onshore intermediaries (s44) legislation. However, slowly but surely, there was recognition that if you engaged with the legislation, it was possible for agencies to legitimately provide self-employed workers to clients and a sense of normality resumed.  We believe the same will happen for IR35 in the private sector.  The use of PSCs will not be as widespread as it has been, but nor is this the failure of PSC contracting.

 

Being engaged by a small company

HMRC have determined that small companies, as defined by s382(2) of the Companies Act 2006, are exempt from making IR35 status decisions and this apparently removes 1.5 million companies from the requirements of the Off Payroll Working legislation.

Small companies must meet at least two of the following criteria:

  • Turnover of no more than £10.2 million
  • Balance sheet total of no more than £5.1 million
  • No more than 50 employees

Whilst these small companies engage a very small proportion of the contractor population, their exemption from decision-making means that the contractor retains the responsibility for determining IR35 (and the liability for getting it wrong) after April 5th.

If you are engaged by small company, your PSC will be continued to pay gross and you determine how you will be remunerated.  But it will be your responsibility to demonstrate due diligence and that your outside IR35 decision is based on an a proper assessment of the contractual terms and working practices, so it would be appropriate to have the engagement and even consider tax losses insurance.

Even if the independent assessment returns an inside decision, you will still have the benefit of the 5% notional relief for expenses, which is not available to those contractors whose IR35 status is determined by their medium and large sized end client engagers.

 

Being engaged by a wholly overseas company

If your end client is overseas with no UK presence, HMRC cannot compel a non-UK based entity to consider IR35 – irrespective of the organisation’s size – and your PSC as the first onshore intermediary is obliged to consider the IR35 status of the engagement. We would offer the same advice as a small company engagement: have your contract and working practices independently reviewed.

 

Managing mixed assignments

IR35 status is based on each individual assignment, not based on the PSC. Therefore, if you are going to work on contracts that are both inside IR35 and outside IR35, it is advisable to make sure you have a robust process in place to manage them. Engagements where PAYE is deducted will leave you with a much lower take home pay – sometimes 30% less – and so you need to be able to cope with fluctuations in income.

 

Umbrella companies

There is nothing wrong with being engaged via a compliant umbrella company. Yes, the day rate will be reduced by the umbrella’s margin for providing its services and it must include the statutory PAYE deductions meaning that you will pay considerably more tax than on an outside engagement via a PSC.

However, ‘compliant’ is the key descriptor. The moment you read statements like “Take home 85% of your pay” or you are being offered a loan or told your funds will be diverted offshore to minimise tax and/or you are being asked to pay fees to enter a scheme (via an umbrella or some other arrangement), then it is time to ask yourself why this works and whether the taxman will view it as compliant. And if it says that it is “HMRC approved”, then it really is time to look elsewhere because unsurprisingly, HMRC don’t approve arrangements which claim to avoid the payment of tax or boost take home pay.  For more on this subject, see: https://www.gov.uk/guidance/tax-avoidance-schemes-aimed-at-contractors-and-agency-workers

 

What does the future look like after private sector IR35 is introduced?

Find out more about IR35 in the private sector in our IR35 Hub. The Hub is packed with information to help contractors and fee-payers navigate their way through the IR35 maze so you can continue to thrive from April 6th onwards.

 

Sources:

https://www.markeltax.co.uk

https://www.contractoruk.com/private_sector_ir35_reform/benefits_working_inside_ir35_your_limited_company_april_2021.html

 

Related Articles:
Click here to download the Essential Guide to IR35 in April 2021

 


Avatar
Written by Caunce O'Hara
Last updated January 22, 2021

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