Reforms to off-payroll working in the private sector – the story so far and what’s next?

*UPDATE: reforms to the off-payroll working rules have been delayed by one year* 

HMRC believes the existing IR35 legislation, designed to tackle tax avoidance by workers supplying their services to clients via an intermediary, “is not working effectively, and non-compliance is widespread.” They estimate that only 10% of personal intermediaries that should apply the legislation actually do so.

As a result, the government announced in the 2018 Autumn Budget that they will reform the off-payroll working rules (IR35) in the private sector. From 6 April 2020 the new rules mean the responsibility for operating the off-payroll working rules will move from individuals to the organisation, agency or other third party engaging the worker.

Broadly speaking, the reforms will require medium and large private sector organisations impacted to identify and review the employment status of all workers engaged through personal service intermediaries. This includes those workers provided via an agency or third party, and potentially treat them as a deemed employee for tax and National Insurance Contributions (NICs) purposes from 6 April 2020. It should be noted that private sector organisations are all organisations which are not subject to the Freedom of Information Act 2000.

The new rules do not affect the smallest 1.5 million organisations in the UK and although it is not yet confirmed, Crowe understands that the government intends to define a small company under Section 382 Companies Act 2006. Under this legislation, a company is small if two or more of the following conditions are met:

  • the company does not have a turnover of more than £10.2 million
  • a balance sheet total of more than £5.1 million
  • does not have more than 50 employees.

For unincorporated bodies the tests are likely to involve the first two points above.

Further details of the measure as provided by another consultation

HMRC has published a further consultation on 5 March 2019 (the first was published in May 2018) which will inform the draft legislation expected in summer 2019. Organisations have until 28 May 2019 to respond. This consultation considers how organisations can prepare for reform and sets out HMRC’s plans to provide education and support for organisations that will be within scope of the changes.

Among other aspects, it is proposed that:

  • where the engager is small, the responsibility to consider the IR35 legislation will still sit with the worker, not the engager, as it does currently in the private sector
  • engagers pass down the labour supply chain the reasoning behind the end user’s status determination, as well as the decision itself
  • existing anti-avoidance provisions that can apply where there are offshore entities in the labour supply chain will also apply in the new regime.

What’s next? A timeline of what organisations need to do

It is important to note that the steps involved in becoming fully compliant in this area are likely to mirror the 2017 reforms of off-payroll working in the public sector and for many organisations these changes required some time to implement. Note that it is important to always keep a clear audit trail for presentation to HMRC in the event of a review.

Based on our experience, there are practical steps that to take now, with the knowledge that these new rules will take effect on 6 April 2020.

Spring 2019

Charities should start planning and thinking about how their organisations are going to address the following changes:

  • identify key stakeholders and all off-payroll workers including those who work through intermediaries
  • review the procurement, engagement and other processes and policies in place including those for determining if individuals are employed or self-employed
  • consider specialist advice if there is uncertainty about the status of your workforce
  • assess the costs of implementing the proposed changes on existing and future contracts; consider renegotiating rates to make up for the shortfall.

28 May 2019                   

The further consultation published on 5 March 2019 will conclude and inform the draft legislation as is expanded below.

Summer 2019               

Draft Finance Bill 2019 will be published.

Autumn 2019               

Design and adapt systems, process maps, internal guidance, contracts and policies to demonstrate that reasonable care has been exercised

For example, consider how you might process off payroll workers using your current systems and processes – does your payroll enable you to add them on? Could you process a payment needing deduction of VAT, tax, NIC etc. and still pay the entity the correct amount?

Winter 2019                    

Test run the new processes and policies during a pilot period and manage any fallout before 6 April 2020.

6 April 2020                  

Go live with the new processes and ensure ongoing compliance. However, and above all else, the message is clear – charities should start planning and taking actions as outlined above as soon as possible.

If you would like any further advice on this area, please contact Caroline Harwood ([email protected]) or Simon Herbert ([email protected]) of Crowe.

Caroline Harwood, is Head of Share Plans and Reward at national tax, audit, advisory and risk firm, Crowe UK

CTG members will also be interested in to read Caroline’s presentation to the CTG Tax Conference (from slide 99).

CTG’s Vice-Chairman, Richard Bray, has also written an article highlighting the need for affected charities to prepare for their new off-payroll working responsibilities.

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