IR35, formally known as off-payroll working rules, are a tool used by HMRC to check whether a contractor is genuine. Some instances will arise where contractors are being “disguised” as employees for tax purposes, and thus IR35 is in place to ensure everyone pays their fair share. While the changes were first due to be introduced in April 2020, they were delayed by a year as a result of the COVID-19 crisis.
However, Mr Oury urged all Britons to take particular caution when it comes to IR35 decision making.
This is because each contract will be different, and therefore a separate IR35 decision will need to be made on each one.
This, he said, has the potential to create a “minefield” of decision making when it comes to IR35.
IR35 rules will not apply in a number of circumstances, and these will be important to check.
If an organisation is not a UK limited company, for example, and is not supplying services to a client who is a limited company, IR35 will not apply.
If those doing the work concerned do not own more than five percent of the limited company, and the worker is not employed by the company concerned – similarly IR35 will not apply.
However, there will be many circumstances where IR35 does have to be taken into consideration.
This burden now lies with the client who must determine themselves if IR35 applies to the situation.
The matter is complicated by the fact there is no single test to determine employment status for tax purposes.
As a result, then, a number of factors will have to be considered when it comes to decision making.
However, in an attempt to reduce this level of uncertainty, Oury Clark has developed an infographic flow chart which allows Britons to answer specific questions about their circumstances.
It is hoped this will provide further clarity to those who are currently dealing with IR35.
In a similar way, HMRC has developed a tool known as Check Employment Status for Tax (CEST).
But it is worth noting some experts have criticised the tool for failing to provide a response in some circumstances.
Responding to this recently, HMRC told Express.co.uk: “In the vast majority of cases, the free CEST tool will determine the worker’s employment status for tax and NICs. In the minority of more finely balanced cases, CEST will give an undetermined outcome.
“To reach a view in all cases HMRC would need to add more complex questions, increasing the burden of using the tool for the majority of users. HMRC has recently launched an enhanced customer support offering where users can speak to an online adviser for help whilst using the tool.”
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