The Intermediaries Legislation, or IR35 as it is more commonly known, has been the topic of conversation for many in the world of freelance contracting. With HMRC this year promising to reduce IR35 case investigation time, this key piece of legislation is now a topic that no contractor can afford to ignore.
What is it?
IR35 is a key piece of tax and National Insurance legislation that directly affects freelance contractors operating through a limited company. The aim of the legislation is to uncover what is known as ‘disguised employment.’
The legislation requires HMRC to create a ‘hypothetical contract’ between the end client and the individual undertaking the work by ‘removing’ the intermediaries of which the intermediary referenced in the legislation is the contractor’s limited company (often referred to as a ‘personal service company’ or PSC).
The reason the contract is hypothetical is that there are no contractual terms between the end client and the ‘worker’. The contractual chain is often End Client → Agency → PSC → Worker, but IR35 applies equally where there is no agency in the contractual chain because the PSC is the key intermediary.
The End Client and Agency are both engaging limited companies as it isn’t possible to ‘employ’ a limited company, and as such are off the hook as far as IR35 is concerned. The focus therefore falls upon the PSC which, in essence, will have failed to operate Pay As You Earn on its employee in respect of an engagement where HMRC can argue that IR35 applies. HMRC, in this situation, would be able to successfully argue that the hypothetical contract represents a contract of service (i.e. one that resembles an employment relationship).
What does this mean for the contractor?
When a contractor is trading through a limited company, the contractor can organise their remuneration in such a way that they receive a small salary and high dividends. The contractor therefore benefits from a slightly lower tax rate on the dividends, but the real saving comes from the fact that dividends do not attract employer or employee National Insurance Contributions (NIC). However, they should only do this for engagements that are deemed to be ‘outside of’ or ‘not caught by’ IR35.
Why is it important?
As a contractor, if your engagements are caught by IR35 legislation as being ‘disguised employment’, then your company becomes liable for the tax and NIC that would be due plus interest on the amount and even a penalty if HMRC can argue that you have not undertaken any form of due diligence. This obviously places a huge financial burden on a contractor, the effects of which could last for years.
How is IR35 applied?
When considering any kind of employment status issue, the first question asked will always be: “Is there a contract of employment?” The reason is that there is no legal definition of a “contract for services” (self employment), but there is sufficient case law to be able to determine what constitutes a contract of employment. Logically, if there is not a contract of service, then there must be a business to business relationship.
There are three key tests of employment which are used to investigate individual engagements, and these help to determine whether or not a contractor’s engagement falls within or outside of IR35 legislation.
The wording of your contract is key here. A genuine freelance contract will be a contract ‘for services’, whereas an employee contract will be a contract ‘of services’. This distinction is hugely important in proving that you are in fact a genuine business, providing a service to another business. In this instance, it pays to be diligent and have an independent IR35 specialist assess your contract.
Another test used to establish if a contract is IR35 friendly is the issue of control. A genuine contractor should have full autonomy over how the work they are contracted for is completed. There are also subsidiary elements to control that can be considered. It is sometimes the case that the contractor will have a considerable input into what the engagement will be (although that is usually the client’s decision), but often the contractor can determine the location. Perhaps the client has multiple sites and the contractor will determine from where he/she operates, or the contractor can work from their own offices. If a contractor has control over where the work is undertaken, they are also likely to have control over when it is undertaken.
Nevertheless, just because the client has determined the project and requires that the engagement must be undertaken on their site (whether due to security reasons or because that is where the equipment/people are), and that the site can only be accessed during certain times, this does not mean that the client is exercising control. The key issue is whether the contractor has control over how the work is undertaken.
There are two further important areas that are considered when assessing the IR35 status of engagement. The first is a right of substitution clause. If a contractor has a clause written into their contract that a similarly skilled worker can replace them on a contract, the contractor is not obliged to provide their personal service. Having to provide one’s personal service is a key indicator of an employment relationship; having the right to substitute denies personal service and therefore indicates a self-employment relationship.
The second is what is known as Mutuality of Obligation (MoO). An employee in a typical employer-employee contract will be paid each month and, in return, will be expected to work across a range of tasks at the discretion of their employer. An arrangement such as this does not exist for limited company contractors engaged in a contract for services. Instead, a contractor will be engaged for a limited and specific project and when that contract comes to an end they are not obliged to remain working for their client. Indeed, if mutuality is to be fully denied, there should be no expectation that the contractor will work for the client on any given day or even be obliged to see an engagement through to conclusion.
Of course, IR35 investigations vary on a case by case basis and no preventative measures will ever cover every eventuality. However, it remains advantageous for all contractors to take the threat posed by IR35 seriously and remain prudent in ensuring that they can confidently prove that they are in business on their own account.
Having Professional Indemnity (PI) insurance can significantly improve your IR35 profile. PI insurance is an all-important element of cover for businesses as it protects against any claims of professional negligence.
Make sure that you are ticking an important business entity test off your list by ensuring that you are fully covered as a freelance contractor. At KPSol we have designed our core insurance package to cover the risks inherent in freelance contracting. This includes Professional Indemnity, Public Liability and Employers Liability cover; our product can help you avoid getting caught out by IR35.
If you wish to discuss your cover requirements then simply call our friendly, professional team at KPSol on 0124 236 2149 and we will be happy to discuss your needs with you.