A Brief Guide To IR35

March 30, 2021

The new IR35 reform will be launched at the start of the new tax year focusing on defining taxable relationships between clients and contractors.

The 2021/22 financial year begins on 6^th April, bringing with it the new IR35 reform, known as ‘Intermediaries Legislation’, which identifies off-payroll working regulations. This change impacts thousands of businesses, their recruiters and potentially more than 1m contractors.

Defining IR35

The basic understanding of IR35 is that it determines whether a contractor should be classed as an employee for tax purposes – however for contractors this can vary between clients and projects. The key factors HMRC will look to determine are:

• If the contractor must take on work personally, instead of providing an alternative worker.
• If the client is obliged to provide work for the contractor and/or if the contractor is obliged to comply with any work request the client has.
• If the client instructs how, when and where the contractor completes the client’s work.

Answering yes to these factors indicates a quasi-employment relationship however for more clarity HMRC has launched an online tool, CEST, to determine IR35.

Who is responsible?

The client is responsible for deciding if the service provided by the contractor is outside IR35 – in a self-employment capacity – or inside IR35 – in an employment capacity. When working with medium-large businesses, the contractor cannot decide their own IR35 status.

Who bears the cost?

In short – everyone. The cost difference can be huge for both contractors and their clients, with recruiters even bearing the cost of IR35 if they are involved in the relationship. Contractors can lose up to 25% of their income after tax, while businesses also incur costs associated with payroll.

The concern of being held responsible for incorrect IR35 decisions, the potential for costly fines, and the expectation of the workload required to determine IR35 status for each relationship, has resulted in some businesses refusing to work with contractors at all.

How can businesses safely work with contractors under new IR35 reform?

Imposing a blanket ban on contractor relationships or, conversely, deeming all contractors inside IR35 regardless of status are not the answer. Businesses need to be sure that they are taking the right steps to continue engaging in compliant relationships with contractors:

• Evaluate IR35 status with sufficient care: including existing relationships and new contracts.
• Distribute Status Determination Statements (SDS): this should be shared in writing with the contractor and any other party involved in the working relationship, including recruiters.
• Set up a compliant payroll process: even if this is outsourced to a recruiter, if the contractor is inside IR35, the client has a duty to ensure their payment process is compliant. Tax must be subtracted from the contractor’s invoice or timesheet and paid to HMRC, and the contractor is paid what is left, in keeping with standard PAYE practice.
• Keep a thorough audit trail.
• Explore ways to mitigate IR35 risk: while non-compliance can be costly, IR35 insurance can cover legal representation, expert advice, liabilities, fines and interest.

As long as businesses remain compliant and follow the procedures outlined by HMRC to determine IR35 status and act appropriately, client and contractor relationships can continue to work harmoniously, avoiding unnecessary disputes, financial penalties or reputational damage. Clear communication, proper documentation and regular reviews of working arrangements also help maintain trust and transparency between all parties involved.

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