Lords: New IR35 off-payroll tax rules 'riddled with problems, unfairnesses, unintended consequences' The UK's House of Lords has produced a damning report into the government's delayed changes to the IR35 off payroll tax regime, saying they require a complete rethink. The government had intended to push ahead with reforms to IR35, which would make large and medium-sized businesses responsible for determining the tax status of …
"#5 The measures impose no new tax, they merely seek to prevent avoidance of an existing one."
Not entirely true. Pension contributions for an employee are made before tax is deducted, working inside IR35 they are deducted after the tax, so yes, a new tax on pension contributions has been introduced. Legitimate Expenses are similarly impacted, for an employee they are deducted before Corporation Tax, under IR35 expenses are covered after the tax has been deducted.
Jolyon Maugham has fallen into the trap that every person performing a role is on an equal footing when the reality is they are not. Employees and Contractors are engaged on different terms, and receive remuneration on different scales.
Employees have protections contractors do not, and employees receive a range of benefits that a contractor must account for out of the gross payment they receive (holidays, sick pay, etc is all part of the gross payment, contractors still receive them, just not from the client as part of the package).
IR35 specifically targets the little man, forces them out of the market and paves the way for the large consultancy companies. Take the money away from the people and put it back in the pockets of the rich.
"the consequences have been announced a LONG time ago, on those pages and others
How can it be unintended ?"
Because most civil servants are ignorant as shit and assume our outcries are just swinging the lead* - as they would naturally do in our position.
* How language changes. I feel the need to explain that the origin of the phrase is a nautical one meaning to sound out the depth of water with a lump of lead on the end of a rope, to see if one can gain passage and not run aground. Outside of its original context, it has connotations of trying to get away with a con.
Actually the lead on a rope was dropped to the floor and then the sailor holding it would hold it vertically and walk along the ship. The time was taken at two points and so the speed of the ship calculated. Swinging the lead was a shortcut so the sailor didn't have to walk to the start point. This was bad as it is less accurate leading to navigation errors (potentially fatal if it means arriving at the end of the sea too soon)
Google agrees with you but I was told a different story about the origins - that it was to do with builders using plumb lines to find a vertical, you can't find the vertical until the lead weight stops moving so if you keep gently swinging the lead you can drag out a really easy job for a long time
"the problems with IR35 come more from ministers than civil servants in this case"
I disagree. IR35 has spanned multiple governments, cabinets, PMs, ministers, and even parties in power. If the problems were coming from ministers, it would be expected that they would change a reasonable amount through the different governments. As they haven't, it's much more likely that the problems are coming from the civil service.
True. However, senior civil servants have greater access to ministers than the rest of the population. They have much more opportunity to influence their decisions, as well as to manipulate the information upon which they make the decision and discredit those who provide a different point of view.
Perhaps you're right but I think it is political. Labour want it because they want everyone on PAYE and I think the Tories don't like it because they only want their mates with big companies doing this sort of thing.
Both groups seem convinced that people walk out of a PAYE job one day and return to it the next as a contractor with the only change being that they pay less tax.
I've worked for a lot of years in IT and I can only think of two occasions where I've seen that happen. Most companies actively discourage it.
"the Treasury made an official announcement in February, it said the rules would be reformed, rather than reviewed."
IR35 needs scrapped completely and the entire Income Tax system overhauled, it is no longer fit for purpose.
National Insurance is an anachronism that should have long since been buried as it no longer "pays for pensions and the NHS" - all tax from all sources covers all government spend so stop pretending to people that certain taxes are of more value than others.
A simple set of bands of income tax for all income is a much fairer system, less loopholes that need stupid subjective assessment such as IR35. And that is IR35s major problem - it is a subjective view of an engagement, an opinion formed by HMRC based on how some wooly questions are answered and how the assessor feels on the day (have they made their quota this month?). Simple banding is objective - "Did you have £xxxxx income last year, then you are due xx% in tax"
"Did you have £xxxxx income last year, then you are due xx% in tax"
Define income in a way that can be applied to everyone in a fair manner... which is the root of the problem.
IR35 was put in place because contractors were exploiting a (rather big) loophole by declaring no income yet taking home a huge pay packet each month whilst working in a single place, often for years, abiding by their 'not really' employer's rules and regulations.
Ever since then there has been a game in play where contractors and their agencies have come up with new and interesting ways of not declaring income as income and HMRC have played whack-a-mole. This is the latest round in the game.
The income is all defined, declared, and taxed already. Contractors are paying tax on the dividends from their PSCs. But at a different rate to that charged on salaries. If you just equalised those rates, then it would no longer matter to HMRC whether you chose to take the money out of your PSC as salary or dividend.
Hmmm, it's incredible how forthright and confident in your appear to be in your post, but in reality how completely and utterly wrong you are. I can quite legally make tens, hundreds or thousands of pounds of income through my stocks and shares ISA via dividend yields or capital gains; or via interest paid on my cash ISA - and there is still absolutely no need to declare it on my SA100.
You need to start reading up on things.
I thought ISA income had to be declared on the form, but was then exempted. However, it is a few years since I filed one, so I could be wrong. The point the O.P. made isn't altered, though - all *relevant* income should be declared, and then standardised tax bands applied. However, this seems to point towards an American system of everyone declaring their income every year, unless a trusted automated system that is much more flexible* can be brought in.
*The current system of PAYE still assumes only one job and deals with multiple jobs very badly, for example.
Interesting idea! A quick google suggests 50% of the value of a SIPP can be in unquoted companies, so maybe.
I don't know if there'd be any benefit to it though. The SIPP would prevent you touching the dividends until retirement age, and if you want to make pension contributions from your PSC you can do that tax-free anyway.
The ISA and endowment provider makes an automatic submission to HMRC informing them of the payment when the payouts from ISA's and other tax-efficient savings are over a certain threshold,
So you may not have to declare it, but if you are trying to claim income-related benefits you may find it in your interest to explicitly declare it.
Whether it is tax paid on dividend or employee commission it doesn't matter as it all lands into the same pot. Contractors have slight tax advantage because they don't receive benefits and protections as employees.
There is nothing wrong in servicing one client for years if you are self employed working on your own account. Do you want to deprive businesses off specialists just because they used them more than say one year? Do you want people to be forced into employment and be someone's servant?
It has nothing to do with tax and since 2017 changes to dividends I don't think people even consider this when choosing self employment.
>IR35 was put in place because contractors were exploiting a (rather big) loophole by declaring no income yet taking home a huge pay packet each month whilst working in a single place, often for years
And who is to blame for this?
I suggest in the vast majority of cases, the customer/employer, who knowingly re-engage the same contractors year-after-year...
"IR35 was put in place because contractors were exploiting a (rather big) loophole"
That's really not why IR35 was put in place. The IR35 legislation was introduced because of the government being embarrassed by prominent media characters such as newsreaders, game show hosts and directors of the BBC setting up a company and supposedly free-lancing to supply their services. These people only had one client and were, quite frankly, taking the p*ss. IT contractors were, for the most part, performing task-related contracts that are excluded from IR35 and tend to move on when the task is complete. The rules that they pay tax under are exactly the same as people like Jacob Rees-Mogg use where their role is paid a stipend and in addition to the basic they receive bonuses and share dividends. Tax is paid on these payments at the appropriate rate.
The problems is that politicians want to grab tax from IT contractors but not pay it themselves. The fair way to deal with this would be to may dividends subject to income tax and NI at the same rates as salary. Then there would be no advantage to structuring payments to avoid tax because there would be no benefit to doing so. Making the use of off-shore companies to avoid tax illegal (as the EU is doing) would also sort out the mess. However that would deprive MPs of "nice little earners" the preservation of which was their main reason for becoming an MP.
We are where we are not from high-minded ideals about tax equality. The truth is IR35 is a complicated vehicle established to perpetuate tax inequalities.
"A simple set of bands of income tax for all income is a much fairer system"
Absolutely fine - providing you then treat employee benefits as taxable. Once that's done the tax rates can be lower so those not getting benefits pay lower tax rates whilst the overall tax take remains the same. The distribution of taxation between groups of workers would be broadly the same as at present providing the benefits are valued appropriately.
OK - but just as you consider holiday pay and sick pay as benefits then a permie might consider being able to work only half the year and saii in the southern hemisphere during winter as a massive benefit. Or being able to tell his director the truth. Or not having to volunteer for weekend work in the company's community aid projects. Or just have the whole summer off with the family in a campervan.. So, maybe HMRC should put a value on down time and tax me when I decide to take half a year off and travel?
If you want employee rights then you have to become an employee. If you want to be a contractor then your rate must include sick pay, holiday pay, down-time, insurance, accountancy, office costs, capital equipment costs, marketing, ........, etc. Mine does and if yours doesn't then you're mad. That's why contractors' day rates are much higher than a permie's.
just as you consider holiday pay and sick pay as benefits then a permie might consider being able to work only half the year and saii in the southern hemisphere during winter as a massive benefit
An employee benefit is something that you get in addition to your normal remuneration. I've never seen a contract that offers sailing (in either hemisphere) in addition to a daily rate, and I don't suppose you have, either. A contractor who chooses to work only half the year is sacrificing half a year's pay. Any holiday taken is paid for out of taxed income.
It's a sad fact that some people's work is more highly paid than others'. Tax regimes that aimed to do more than slightly moderate this disparity haven't generally worked out well.
Dividends were originally taxed differently because they came from income which had already been taxed - i.e. the company profits after corporation tax had been paid on them. The dividend tax rate plus the corporation tax rate were broadly equivalent to the tax which would have been paid had the money been taken out of the company as salaries . Dividend tax was changed a few years ago, I think because company tax had dropped much lower than historic values without the dividend tax being raised to compensate.
I agree with other posters here that NI should be abolished as a separate tax and rolled into income tax and corporation tax and all (personal?*) income taxed at the same rates, whether salary, pension or dividends. Pensioners would complain, cos they don't pay NI, but I hazard a guess that the system would probably pull in more tax so overall rates might go down a bit.
*I am not an economist, so I don't know what the impact of doing this might be on things like pensions - witness Gordon Brown's alleged knackering of UK private pensions by fiddling with dividend taxes.
but I hazard a guess that the system would probably pull in more tax so overall rates might go down a bit.
Even if the system wouldn't pull in more tax, it would be a lot simpler so needing much less tax collectors, resulting in a very nice reduction in costs. And that in its turn tells you why HMRC is making such a mess of the necessary tax reforms.
That is definitely one of the reasons. Imagine tax inspector assessing company accounts through automated tool in minutes versus deliberating with multiple colleagues, accountants and organisation for months on cushy CS salary. If that is not corrupt behaviour then what it is? We need a deep reform of this institution.
"and all (personal?*) income taxed at the same rates, whether salary, pension or dividends"
And employee benefits. That's what permies always forget when they make these suggestions. As soon as the availability of sick pay, employee protection rights and so on are taken into account they'd realise that they're not comparing like with like.
Employee benefits account for about a 40% increase in costs on a company, pension (10%), holiday inc public holidays (15%), sick days (5% - but very variable), health care (1-2%), maternity pay (up to 100%!!! but in reality 30-40% twice in 40 years - 1.5-2%), death benefits (1-2%), bonuses (0-20% depending on industry)
Then of course contractors need insurance and accountants (1-2%)
If a contractor is only earning 40% more than the person next to him, the tax advantages are effectively a risk adjustment on short term contract and no notice period
In theory Dividends can only be paid out of profits, and profits have already been assessed for Corporation tax, so the status was that (some) tax had already been paid.
Up until the recent dividend tax introduction every person in the UK was entitled to an exemption against any personal income tax equivalent to the corporation tax already paid. This meant that there no additional tax to pay until your total income exceeded the higher rate band. i.e. HMRC received the same amount of tax, it just came from two different tax sources (assuming both Company and person are tax resident in the UK).
It could be argued that dividend income should be taxed fully again, however there is evidence that simply leads to businesses finding alternative methods of dispersing profits (e.g. share buybacks to raise the value of the individual share price, or alternative investment).
"Critics say that being inside IR35 is essentially "no-rights employment," meaning techies are paid and taxed similarly to regular employees but do not receive any of the security or protections that go along with permanent employment. Contractors within IR35 can be hired and fired at will and without reason."
All these so called employee rights are puitting an unbearable strain on the employers, who would be much more efficient if they didn't have to trouble themselves providing them....
/s in case anyone really needed it.
>Contractors within IR35 can be hired and fired at will and without reason.
Sorry, but this is a really bad misconception to be under. The overwhelming majority of people currently feeling the pain of the eternal saga of bad IR35 regulations are freelance contractors, but they are not employed by the organisation they are working for. They are typically employed by or at least a director of a company that they additionally wholly own. There are good reasons for this (liability limitation, legal/financial simplicity) and bad reasons (paying less employers' NI), but the reality is that contractors are typically full time employees of their own firm.
If they choose to not furnish their employees (i.e. themselves) with paid sick leave or paid holidays or training opportunities, then they should probably take that up with their actual employer (i.e. themselves). If their employer has negotiated a contract with absolutely no termination protections then they should have a word with the person that negotiated that contract (i.e. again, themselves).
IR35 campaigners need to be careful here. On the one hand they want everyone to know they are definitely not employees per se and are definitely not doing this just to reduce their tax burden. On the other hand they want the powers that be to think of freelancers as "zero rights employees". We can't have it both ways. We should be making it entirely clear that we aren't zero rights employees, because if we were we'd just be on zero hours, rolling 364 day employment terms like every cleaner in the land. We're high value contractors delivering high value services and we shouldn't pretend there is any commonality with employment, because there should not be.
"On the one hand they want everyone to know they are definitely not employees per se and are definitely not doing this just to reduce their tax burden. On the other hand they want the powers that be to think of freelancers as "zero rights employees". We can't have it both ways."
I think you misunderstand. Contractors are not calling themselves "zero rights employees". They are saying that, if declared inside IR35, they are effectively being treated as "zero rights employees".
But therein lies the rub. It implies that IR35 has any relation to their employment rights. Nothing about the character or legal basis of the commercial and contractual relationships depends on IR35. It is a regulation that determines how much tax you pay, and by what legal mechanism. A vague and easily broken one, but a taxation regulation nonetheless. If they're declaring that contractors inside IR35 are employees without rights, then so are contractors outside IR35.
Further, if we want to get into the more abstract side of things, it seems to imply that we have the right to trade off our employment rights for more money - i.e. that if we're "outside" it's OK that we don't get holidays or sick leave. Such a right does not exist. If the lobbyists carry on down this route then HMRC will just change tack and start bringing actions against these employers (i.e. the contractors) for not complying with employment law.
Trust me lads, you'd much rather pay a mite more NI.
You can't run a business on inside IR35 contract, because... the cashflow doesn't work.
A permanent employee working January will generally be paid around 24th January. A contractor (not via an agency) will raise an invoice on 1st February with payment due 1st March, but in practice the payment will usually not arrive before mid-April. Meanwhile January's PAYE will be due on the 22nd February, February's on 22nd March and maybe VAT as well. So not only does the contractor receive no salary (there's no cash) but they also have to give an interest-free loan to their company to keep it afloat.
As an employee of my own company, yes, I provide myself holiday party, sick pay, pension contributions and a whole range of benefits.
However, were I to be declared inside IR35, this would no longer be possible as all payments to the company world have to be taken immediately as salary. I would be unable to work as a business, putting aside funds to cover the benefits I wish to provide myself. I would be forced to act as an irresponsible business owner, and would then have to budget, as an individual, for the benefits my employer should be providing.
This is why an inside IR35 contractor becomes, effectively, a zero rights employee.
"The UK economy will need the help of the UK’s flexible workforce to get back on its feet as we emerge from this crisis and that is going to take some time. Now is not the time to apply a straight-jacket"
Nice to see that somebody has a clue.
The only question left is : is it not too late ?
The solution to IR35 is extremely simple and could be done today.
Government is okay that deemed employee is hired by an umbrella and receives small basic salary + bonus. Government however is not happy that a director pays him or herself small salary + dividend.
The difference between the two scenarios is that the end tax level is very similar, but deemed employee pays NI on the bonus.
Just make NI payable on dividends and make them deductible from Corporation Tax.
Problem solved.
This is not going to happen, however, because large consultancies have their greasy hands in many pockets.
Self-employed person being wrongly assessed as inside cannot claim business expenses (they can 5% in the private sector). This means if they need to buy tools to do their job, they need to pay them off their salary, however an employees employer can buy the same tools and deduct them from the tax.
As the director of a microbusiness that supplies staff, including me, to undertake IT work for larger businesses we have to have our contracts and actual working practices reviewed each year by our accountants who are taxation specialists. For over twenty years they have reported that we comply with the requirements for a genuine services company and more recently they have assessed over and over again that we are outside the scope of IR35. However two of our clients are running scared of IR35 because they don't want to risk having to pay fines of back-dated employers' NI so they have declared contracts to be inside IR35 when they are not. This is, as far as I can tell from other companies in the same boat, typical. Hence we will suffer a drop in turnover because our staff are being unfairly classed as employees of the wrong organisation. HMRC not interested at all in this.
I've rejected approaches from four different recruiters in the last fortnight trying to resource public sector roles in strange locations that would mean travelling for almost anyone that takes the gig. All inside IR35 (one with option of 18 month FTC), so the cost of travel and subsistence can't be set against tax.
It would seem that they are really struggling to find candidates. Doh!
"none of the rights of being an employee, or the tax advantages of being self-employed"
This statement is demonstrative of complete misunderstanding of the situation.
[1] Contracting is not merely about tax advantages - in fact there are very few in most cases. it's primarily about filling specialist needs of clients and secondarily about flexibility, autonomy and the ability to control the work.
[2] Limited company director contractors are emphatically not self employed. They are employees of the limited companies of which they are directors. That's the entire basis for the argument against being treated as quasi-employees of their clients.
Shame on El Reg for persisting in getting this so wrong. after all the discussion on this forum and elsewhere.
I suppose it's somewhat encouraging to note that the Lords have recognised the class of zero rights employees that IR35 has created. What they don't seem to have noted, although I among others put it to them, is the very real possibility that genuine employment could be generally or widely replaced by contracting under IR35 as a way for employers to avoid the costs of pensions, holiday and sickness pay. Thus the current shortage of contracts because businesses are running scares could be supplanted by a shortage of permanent posts once they catch on to the savings and freedoms resulting from making all new hires IR35 contractors.
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