As a contrator you should fall outside IR35, but if HMRC were to take a closer look at your arrangements, would you be able to prove it?
As a contractor rather than an employee you should fall outside IR35. But if HMRC were to take a closer look at the arrangement, would you be able to prove it?
This question is paramount to the tax rules known as IR35. The rules are designed to clamp down on what is termed ‘disguised employment’, which is where a worker supplies their services through an intermediary (usually their own limited company) in what is claimed to be a contractor/client arrangement. HMRC’s concern is that some of these arrangements are not genuine and have been set up for tax-saving reasons, and so should be treated as employee/employer relationships and therefore (and importantly for HMRC) taxed accordingly.
The bad news is that if a contract is deemed to be inside IR35, HMRC can make a demand for retrospective income tax and NICs, in addition to penalties and interest they deem apply – and this can apply to past contracts, too.
The better news is that by preparing for the possibility of an IR35 inspection, by understanding what HMRC inspectors will likely look for, and by producing evidence in support, you will be in a much stronger position to prove that your arrangements are genuine contractor/client relationships that fall outside of IR35. Here’s how to do it…
If you are faced with an HMRC IR35 enquiry into your employment status, what exactly is the tax inspector looking for?
As you would probably expect, the inspector is going to want to take a good look at the contract between you and your client. That said, and this really can’t be stressed strongly enough, the wording of the contract itself is not regarded by HMRC as cast-iron proof of your status. To decide whether you are a contractor or an employee, tax inspectors will look closely at your actual working practices.
To examine these, HMRC inspectors use three principles known as the ‘tests of employment’. These three principles are:
Once the contract is underway, it’s extremely wise to collect and keep a regularly updated a file of evidence that shows you are a contractor as opposed to an employee. Contract reviews, memos, email threads, work logs – even evidence linked to other projects you are involved in – can all be helpful in proving your case.
Useful evidence includes that in regards to the three principle tests of employment, namely:
Proving absence of control
Your personal work logs can help show that you dictated precisely when you worked. If much of the work is done from home (thereby showing that you controlled where you worked), make sure those work logs and similar records are clear on this. Especially if you are required to attend the client’s premises, keep hold of evidence that shows you are not treated like ‘part and parcel’ of the organisation. Simple indicators such as visitor sign-in records and car park passes can be useful here. You are not a member of staff so (as tempting as they may be), be very wary of signing up to staff perks if they are offered – such as staff canteen privileges, season travel cards and gym membership. Try to control the tone of communications with your client. For instance, if it appears you are asking permission to be on-site on particular days, as opposed to informing your client of your schedule, it becomes easier to wrongly infer the existence of an employer/employee relationship.
Proving a right of substitution
If you actually need to appoint a substitute (e.g. due to illness), then keep all records relating to this. Even if the need to engage a replacement does not arise, it helps to be able to show you could rely on the right of substitution if needed. Consider obtaining written confirmation from the client that they would be willing to accept a suitably qualified substitute, chosen and paid for by you. Also, if you are aware of any situations where other contractors in a similar role have engaged substitutes with that client, obtain details of this.
Proving absence of mutuality of obligation
Communications showing you have declined offers of contracts with this client in the past may help to show that you are not under any commitment to take on additional work from the client. Likewise, flag up any instances where you have politely declined requests to carry out tasks that are outside of the agreed scope of the contract.
If a HMRC inspector suspects that your contract is within IR35, then, at the very least, you will be faced with the hassle of responding to the taxman’s IR35 enquiries. Most important, you can be hit by a higher than expected tax and NI liability relating to your current contract, as well as possible demands for repayments relating to previous contracts as far back as six years.