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Navigating going from inside to outside IR35 as a Contractor

Navigating going from inside to outside IR35 as a Contractor
Rhys Thomas

By Rhys Thomas

04 Jul 2024

Navigating the transition from an inside to an outside IR35 determination involves a series of critical considerations for contractors. Understanding the tax implications is important, but Contractors must also grasp the broader dynamics of the working arrangement.

Additionally, assessing factors like Supervision, Direction, and Control (SDC) throughout the working relationship becomes key. These considerations lay the groundwork for Contractors to effectively manage their tax liabilities and ensure compliance with IR35 regulations. By addressing these questions head-on, Contractors can navigate the complexities of IR35 determinations with confidence and clarity.

Off-payroll working – A quick recap

The off-payroll working rules, commonly known as IR35, were implemented to ensure fair taxation for individuals operating through their own limited companies, known as personal service companies (PSCs). Introduced in 2021, these rules shifted the responsibility of determining a Contractor’s employment status for tax purposes from the Contractor’s PSC to the end client, with exceptions for clients located wholly overseas or classified as small companies. If a Contractor’s employment status falls “inside IR35”, indicating a working arrangement resembling employment, the party paying the PSC must deduct income tax and National Insurance Contributions before payment. However, if the arrangement is “outside IR35,” the PSC should be paid gross, leaving the Contractor responsible for managing their tax liabilities.

The four pillars of IR35

The four pillars of IR35 serve as fundamental benchmarks for assessing the employment status of Contractors and determining their tax liabilities. Each pillar represents a key aspect of the Contractor-client relationship, offering insights into the nature of the engagement. Understanding these pillars is essential for both Contractors and clients to ensure compliance with IR35 regulations and to accurately determine tax obligations.

Pillar one – Supervision, Direction and Control (SDC)

Pillar one establishes the degree of control exercised by the end client over the Contractor by assessing SDC. In an IR35 assessment, it is crucial for the Contractor to maintain considerable autonomy in the delivery of the required services. While some level of supervision from the end client is required at a very basic level, it should be limited to ensure the establishment of a genuine business relationship. Key indicators include the Contractor’s discretion over aspects such as location, working hours, days of service provision, and methods of service delivery.

Pillar two – The right of substitution

Another key indicator of a business relationship is the right of substitution. Personal service is an essential element of a contract of employment, therefore if there is a genuine right to substitute, there can be no employment. The right to substitute should ideally be “unfettered”, although it can be “fettered”, meaning the end client can place conditions on the provision of any substitute. For example, they may require a substitute to have certain necessary skills and qualifications in order to perform the work. The right of substitution should be written into the contract and acknowledged by the end client. Crucially, the right to use a substitute should be exercised by the Contractor, as a key indicator of a business-to-business relationship.

Pillar three – Mutuality of Obligation (MOO)

The lack of Mutuality of Obligation (MOO) stands as another crucial determinant, by essentially stipulating that neither the end client nor the Contractor is obligated to provide or accept work beyond the contract’s term. For an outside IR35 contract, a clause should be included to demonstrate that no MOO exists. Additionally, the longevity of the Contractor’s relationship with the end client poses challenges in proving their status as outside IR35. Whilst not definitive, HMRC may interpret regular work provision and acceptance over time as indicative of an employee-like arrangement. Key considerations include clearly defined start and end dates in the contract, along with provisions allowing both parties to terminate the agreement without cause. These factors collectively reinforce the independent nature of the Contractor-client relationship.

Pillar four – The taking of financial risk

The taking of financial risk highlights the significance of demonstrating the Contractor’s assumption of financial responsibilities, indicative of a genuine business relationship. This aspect highlights the Contractor’s autonomy in managing their own business operations. Evidence of taking financial risk can be seen in various forms, such as the Contractor providing their own equipment and funding any additional training. HMRC will look at the degree of risk taken by the Contractor. An employee is very unlikely to take on any financial risk. Additional indicators include the Contractor’s procurement of insurance and where the Contractor indemnifies the end client in respect of damages arising from negligence. With this indemnity, should any negligence arise throughout the contract, the Contractor will be required to correct their own work at their own cost. These factors collectively portray the Contractor’s financial stake and reinforce their status as an independent entity under IR35 assessment.

Key risks and considerations

What are the tax risks when moving from an inside contract to an outside IR35 contract?

Navigating the transition from inside to outside IR35 entails careful consideration of key risks and factors. One significant risk involves the potential financial implications of misclassification. Moving from an inside to an outside determination means assuming greater responsibility for managing tax affairs, which in turn requires meticulous attention to compliance to avoid penalties. Contractors must also evaluate the nature of their working relationships, scrutinising factors such as the level of autonomy, control, and supervision involved. Additionally, understanding the client’s stance on IR35 and their compliance processes is essential, as it directly impacts the Contractor’s working conditions and tax obligations. Moreover, Contractors should anticipate potential disputes or disagreements regarding their IR35 status and have strategies in place to address them effectively. By proactively assessing these risks and considerations, Contractors can navigate the transition with confidence and mitigate potential challenges along the way.

Does this open up the risks of a tax investigation?

Contractors transitioning from inside to outside IR35, often express concerns about the potential impact on their tax position for previous years and the likelihood of this leading to an HMRC investigation. While shifting to PAYE shouldn’t inherently trigger HMRC attention, each engagement must be evaluated on its own merits. In the event of a HMRC inquiry into past years, Contractors must demonstrate genuine business-to-business operations through contractual and working practice evidence, aligning with established case law principles, including the pillars of working outside IR35.

Opting out of The Conduct Regulations

Should I opt out if I am inside IR35?

While the Conduct of Employment Agencies and Employment Businesses Regulations (the Conduct Regulations) offers protection for workers, individuals have the option to opt-out should they choose to do so. Opting out means forfeiting all protections afforded by the legislation. This choice is often taken by self-employed workers or those operating through their Personal Service Company (PSC), signalling their belief that they do not require legislative protection. Opting out may suggest that the worker operates as a separate business entity and assumes financial risk, potentially supporting their outside IR35 status, although it is not a definitive factor. However, for Contractors operating within IR35, opting out offers little to no advantage. It is important for Contractors to carefully consider this decision and ensure it is made voluntarily. If implemented, the opt-out must adhere to specific criteria for it to be valid; the Contractor must not be compelled to sign the opt-out, the agency must receive a signed Conduct Regulations opt-out form before introducing the Contractor to the client, the opt-out form must be signed by the agency, the worker, and the worker’s PSC, and it must be returned to the client before the assignment’s commencement.

Getting it right

In navigating the transition from inside to outside IR35, several crucial considerations emerge, spanning from understanding the key determinants of IR35 status to evaluating contractual arrangements and potential financial risks. Contractors must grasp the nuances of IR35 legislation, including the four pillars, and meticulously assess their working relationships to ensure compliance. Seeking professional advice throughout the process is invaluable for ensuring compliance. Tax and legal advisers can offer key insights, helping Contractors navigate complexities, mitigate risks, and make informed decisions. By understanding the intricacies of IR35 and leveraging professional guidance, Contractors can navigate this transition with confidence, ensuring compliance whilst safeguarding their financial interests.

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