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Myth. It is true that the end client is responsible for making IR35 decisions under the off-payroll legislation that came into force in April 2021. 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.
As stated above, the Off-Payroll legislation shifts responsibility to the contractor’s end client and/or agency (subject to the small client exemption. Clients that have no UK connection are also exempt).
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.
The client has a number of obligations under the legislation, including:
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:
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 or if it fails to respond adequately to a contractor's appeal within the 45-day time limit.
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.
Catching any mistakes early will mean the contractor could lodge an appeal. The client will then be required to either revise its decision or provide further detail as to its reasoning, helping both the client and the agency avoid any further liabilities. If the client fails to respond adequately, it will become liable for tax instead of the agency.
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.
Whether you represent an agency or an end client, we recommend you start your preparations for the coming IR35 changes early. PayStream have launched an online IR35 Review Service called IR35 Comply, which was voted the UK's Best Contractor Innovation at The Contracting Awards 2020. 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.