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IR35 MythBuster #4 - Who is liable?
Julian Ball | Legal Director
Monday 23rd Sep, 2019
Fact or Myth?
Agencies can leave decisions on IR35 solely to their clients without risk.
Myth. It is true that the end client is responsible for making IR35 decisions under the off-payroll legislation coming into force in April. However agencies (as the payers of PSCs) are liable for deducting tax due to HMRC.
If HMRC believes there is any tax due it will look first to the agencies for the tax. This liability may pass to the end client in certain circumstances (see below) but agencies would have to point HMRC to their clients to avoid liability which commercially may be an issue.
What is changing?
Currently PSC contractors in the private sector are responsible for making IR35 status determinations and for making any additional tax payments. As stated above the Off-Payroll legislation changes this and shifts responsibility to the contractor’s end client and/or agency (subject to the small client exemption).
These changes are similar to what we have already seen in the public sector, with some additions, such as the contractor’s right to appeal a determination.
What exactly does the client have to do?
The client has a number of obligations under the legislation, including:
Assessing whether a role is inside or outside IR35.
Passing on the Status Determination Statement (“SDS”) and reasons for the decision to the contractor and agency.
Using reasonable care in making its decision on IR35.
Responding to contractor appeals within 45 days with reasons for its decision.
What then does the agency need to do?
Since it is the client’s responsibility to determine status, agencies might be tempted to assume they can leave IR35 to the client. But there are several reasons why agencies need to be involved:
Clients will expect help and may even ask for indemnities.
The legislation doesn’t say the agency simply has to follow client’s instructions, it says the agency must deduct tax if the worker is caught by IR35. So where the client has taken reasonable care to make a determination, but simply got the answer wrong the agency may be at risk.
If HMRC starts an investigation an agency would have to convince HMRC that its client didn’t take reasonable care if it wants to pass the liability to its client. This will be commercially difficult to do whilst still retaining a good relationship.
What if the client gets the IR35 decision wrong?
As things stand the legislation doesn’t say that a client will be liable if it gets a decision wrong. It will however be liable if it hasn’t taken reasonable care.
There is no statutory definition of ‘reasonable care’, although HMRC has released guidance on this topic in the past. If the client has taken external advice or used HMRC’s tool then it will be very difficult for HMRC to prove lack of care.
This leaves the agency (as the fee payer) as the obvious target for HMRC.
Agencies are at risk if clients make wrong IR35 decisions.
There are solid commercial reasons to provide support to your clients. Not all clients will have the in-house expertise or resources to cope with a high volume of IR35 reviews. Clients will naturally look to their agency partners for support and helping clients at this time is likely to build on your commercial relationship.
Clients may also be tempted to make blanket determinations on IR35, putting all of their contractors ‘inside’ – which could result in angry contractors. An agency could play a vital role in helping its clients manage the coming IR35 changes and to make sure everyone in the supply chain is in the best position for April 2020.
Help is at hand
Whether you represent an agency or an end client, we recommend you start your preparations for the coming IR35 changes early. PayStream have recently launched a new online IR35 Review Service called IR35 Comply. IR35 Comply is the product of our specialist IT development and over 14 years’ experience of reviewing assignments from an IR35 perspective. It offers a powerful combination of IT workflow systems with a human review, provided by our IR35 team. We are currently working to a 24 hour turn-around – please click here for more information.
Related article - IR35 MythBuster #3 - the small business exemption
Fact or Myth? If the small companies exemption applies, an agency could still be liable for unpaid tax under the new IR35 rules.