*UPDATE: From April 2021 the rules for engaging individuals through personal service companies are changing. The responsibility for determining whether the off-payroll working rules (sometimes known as IR35) apply will move to the organisation receiving an individual’s services.* 

The term IR35 refers to the tax legislation that is designed to combat tax avoidance by workers and the firms hiring them, and specifically to those who supply their services to clients via an intermediary, such as a limited company, and who would otherwise be an employee if the intermediary was not used. Changes to IR35 rules were introduced into the public sector in April 2017 and are being extended to cover private businesses in April 2021.

Larger cultural organisations and the arts professionals who supply services to them are having to comply. So what will be the impact of this – and is the cultural sector prepared? [Nick’s original article was targeted at the cultural sector but is applicable to many other charities too]

CTG has extensive guidance on IR35 here.

Employed or self-employed?

First of all it’s important to understand the difference between ‘employment’ and ‘self-employment’ – an issue which arises whenever an organisation considers engaging contractual workers.

An employer can’t simply tell a worker they are self-employed, as this would enable employers to avoid paying tax and NI, and avoid their legal responsibilities to their employees. Likewise, a worker can’t insist that an organisation pays them – or the limited company through which they work – without deducting tax and NI. There are rules that both parties need to take account of.

There is no statutory definition as to what constitutes ‘employment’ or ‘self-employment’, but case law and guidance published by HMRC make it clear that four main factors need to be considered as part of any process to determine whether a person should be treated as an employee or not.

Control: Is the worker subject to the supervision, direction or control as to what they do, where the work is carried out and how the work is undertaken? If so, then this suggests a contract of employment.

Integration: Is the worker involved with the core business of the engager? Are they seen as being ‘part and parcel’ of the organisation, or feature on any organisation chart? Alternatively, is the worker providing only peripheral services for the organisation? Integration points towards employment.

Mutuality of obligation:  Is the worker obliged to offer their services to the organisation, and is the organisation obliged to offer them work? If so, then the arrangement is deemed to be one of employment. Where there is no ‘mutual obligation’, that implies a contract for services (self-employment).

Financial risk: If a worker is truly in business on their own account, they may, for example, purchase their own equipment, hire others to help them provide their services and bear all the risks and costs of providing those services. This all indicates self-employment.

This framework also applies to any sole trader operating through an intermediary. If, were it not for that intermediary, they would be defined as an employee of the organisation they are working for, then they should be treated as an employee with all the associated benefits and obligations for both parties.

What do the changes mean?

Under the rule changes coming in, operating IR35 becomes the responsibility of the organisation, not the worker. The good news is that IR35 rules will only apply to larger organisations, those with:

• Turnover > £10.2m (excluding donations and other voluntary income)
• Balance sheet total > £5.1m
• Number of employees: 50 or more

For unincorporated organisations, the change in legislation will apply where only one of the above tests is present, but over two accounting periods.

But for those organisations, this is a fundamental change and there will be costs involved. IR35 requires them to:

• evaluate the status of all the intermediaries providing services to them (typically through personal service companies)
• evaluate their roles to determine whether they are employed or self-employed and keep copies of the reports. (HMRC’s Check employment status for tax tool may be helpful)
• if they are found to be employees then the organisation must operate PAYE and Class 1 NI on the net value of the invoice raised by the intermediary and include their details on their payroll system.
• if the total annual salary bill is more than £3m, then they will also have to pay Class 1 (Secondary) NI and an additional 0.5% towards the Apprenticeship Levy.

The organisation is required to share a copy of their evaluation with the intermediary, who has the right of appeal against the decision. The organisation will have to respond to an appeal within 45 days, and any disagreement can only be resolved between the two of them as HMRC will not be step in to settle a dispute. If the decision is reversed, it is important that information is retained.

Nick Bustin is Director of Employment Tax at haysmacintyre. This article was originally published here.