*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.* 

Off-payroll working will be a major change for larger charities when it is introduced in April 2021. It will mean that those charities will have new responsibilities to pay PAYE and national insurance (and apprenticeship levy where appropriate) where a personal service company is engaged…

This reflects changes already applying in the public sector. It may seem a long way off but there are issues that need to be thought about now. The purpose of this article is to set out what charity finance professionals need to be thinking about now.

Is your charity subject to the new rules?

Only charities which meet the Companies Act definitions of a medium or large company have to comply. Companies which are “small” need not comply. For this to apply, two out of three criteria must be met.

These are:

1) Less than 50 employees

2) Total assets of less than £5.1m

3) Turnover of less than £10.2m.

In response to consultations on the issue of what is the turnover of a charity, CTG has argued that the definition of turnover should exclude donation and grant income  – HMRC has now confirmed that this is the case.

The vast majority of charities will be small, but many will not. So, if you are caught what will the new rules mean in practice?

When utilising a personal service company (a company by which a contactor provides his or her services to a ‘client’ such as a charity) a charity will have to consider whether those services would be an employment but for the use of that company. If it does, then the company becomes a deemed ‘employee’ and PAYE and national insurance contributions need to be paid. Other personal service companies can be treated as they are currently.

Importantly, this change will not create an employee relationship. The person operating the personal service company will not have employee rights such as holiday pay and sick pay. But it could be a sensitive issue with individuals who are used to having payments made to their company gross. These individuals will need to be managed sensitively and it would certainly be unwise to leave these discussions until the last minute.

This is particularly so as HMRC are introducing the changes as the owners of many personal service companies do not comply properly with the current “IR35 rules”. These rules require such companies to pay over tax and national insurance on a similar basis to what would be paid in respect of an employee delivering the same services. This leads to a tax shortfall. HMRC estimate that only 10% apply the current IR35 rules properly.

This then leads to a question of how the level of payment to personal service companies caught by the new rules should be pitched?

If employer’s national insurance will need to be paid, then these services will suddenly become 13.8% more expensive. A cost that many charities cannot afford. This is important when entering into new arrangements with personal service companies. Do the right people in your charity know about this and what are the implications of existing contractual terms included in the agreement with the personal service company?

Then there are the practical implementation issues to think about

It would be wise to get in touch with your payroll system provider. What are they doing to ensure that your systems will be ready for the change and how do they expect this to operate? A further complication is that the personal service company is likely to continue issuing invoices as it has before. These will generally include VAT.

So, changes will be required to your accounts payable systems which will presumably pay the VAT whilst the net value of the invoice will, in effect, be processed by your payroll system. How will this work? You will most probably need to speak to the systems provider for your accounts payable system  – assuming that you do not have some form of integrated package.

So, there is much to think about. My plea is simply that we all make the most of the time given to us to plan for the impact of off payroll working. As we all know the implementation date will be with us sooner than we think.

Richard Bray is Vice-Chairman of the Charity Tax Group and produced this article for Charity Financials as part of a new regular series of updates.