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HMRC blasted over "inaccurate" and "unreliable" IR35 online assessment tool

Public sector contracting stakeholders claim newly launched tool is returning inaccurate results over IR35 status of some public sector off-payroll workers

An online tool designed to help public sector organisations ascertain if contractors should be taxed in the same way as full-time employees is error-prone and unfit for purpose, it has been claimed.

HM Revenue & Customs’ (HMRC) Employment Status Service (ESS) launched on 2 March 2017, and is designed to help contractors, and the public sector organisations who hire them, work out if they should be taxed in the same way as salaried workers or off-payroll staff.

The launch coincides with HMRC’s anti-tax avoidance IR35 reforms coming into force on 6 April, which will see public sector organisations assume responsibility for deciding how limited company contractors should be taxed for the first time.

At present, the onus is on contractors to declare themselves “outside” of IR35, to avoid being taxed in the same way as a permanent employees, and to conduct their business in a way that does not risk them being considered one.

While the roll-out of ESS is designed to bring a degree of clarity and certainty over how contractors should be taxed, research carried out by online information portal, ContractorCalculator, suggests its results are – in some cases – at odds with the UK’s employment laws

This is based on the outcome of a number of tests the organisation carried out, which saw it feed data relating to 21 high-profile IR35-related court cases into ESS. In 27% of cases, the tool returned an “unknown” result, and has passed some contractors as operating inside-IR35 when they are not.

Dave Chaplin, CEO of ContractorCalculator, said the tool is failing in its duty to bring clarity and assurance to contractors concerned about how their tax status may change once the IR35 changes are applied.

“With only a few weeks to go before the IR35 reforms come into force, HMRC’s tool is nowhere near fit-for-purpose, and HMRC could be handing out employment status decisions to contractors, agencies and public sector hirers that are wrong – or simply leaving them in limbo land,” he said.

“For an organisation to assess its tax risk on such a shaky implementation presents a huge risk to projects and ultimately the bottom line.”

Read more about IR35

Instead of relying on ESS, Chaplin said contractors and public sector organisations should for forgo it completely and consider having their tax status reviewed and confirmed by qualified lawyers instead.

“The public sector is in complete chaos, and it’s about to get worse as contractors are handed either the wrong result or no result at all.”

The CEO of Leicester-based professional indemnity provider Qdos Contractor, Seb Maley, has also called into question the accuracy of the ESS tool’s results, before outlining the issues associated with taking a tick-box approach to IR35 classifications.

“IR35 is a complex issue. It takes expertise and the ability to look at each case individually to be confident of an accurate decision. It’s hard to see how a one-size-fits-all approach like this can be completely reliable,” he said.

“With little time until changes to IR35 in the public sector are enforced, it’s concerning that HMRC’s new tool has only just been released. Changes are imminent, and there isn’t much time to iron out any teething problems.”

Public sector tax concerns

Public sector IT contractors, speaking on condition of anonymity to Computer Weekly, have expressed misgivings about the accuracy of the tool’s findings, with several questioning its ability to understand the nuances of their individual working arrangements.

The timing of the launch has also emerged as a key area of concern for contractors, given the go-live date fell just a month before the controversial IR35 reforms come into effect on 6 April.

In a blog post, published ahead of the ESS launch, Andy Chamberlain, director of policy at The Association of Independent Professionals and the Self-Employed (IPSE), said this would leave a very small window of opportunity for contractors to test the tool’s accuracy.

“So unless it’s perfect, thousands of engagements will be assessed inaccurately,” he said.

“If the tool is flawed, it will undermine the whole enterprise, and there will be no time to amend it because the government has waited until the eleventh hour to publish.”

He also claimed some public sector organisations have already ruled all workers inside IR35, in the absence of ESS, prompting a mass exodus of contractors.

Indeed, as previously reported by Computer Weekly in October 2016, an IR35-related clampdown on contractors resulted in around 30 leaving the Ministry of Defence agency, the UK Hydrographic Office, at the end of August 2016.

At the time, the IR35 reforms were still under consultation, and a question mark still remained over whether or not the government would push ahead with their plans, causing industry watchers to question why the UK Hydrographic Office (UKHO) had decided to take such a hard line on off-payroll workers already.

In a statement to Computer Weekly, an HMRC spokesperson said the tool, coupled with the IR35 reforms, are being introduced to ensure parity in how much people get paid and taxed for doing the same job within the public sector.

“Public sector organisations and contractors are free to work with each other in a manner that suits their circumstances, however it’s fair that two people doing the same job should pay the same taxes. These reforms will help ensure that happens," the spokesperson said.

“Like all tax changes, we are monitoring their effect to make sure they work effectively and fairly and we have yet to see any cause for concern.”

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As well as inaccurate and unreliable answers the tool appears to have completely overlooked the need for Mutuality of Obligation, one of the three major indicators of status in employment law.

As an employee there is a mutual obligation for you to turn up and for your employer to pay you regardless of whether there is actual any work to do.  If your employer decides your services are no longer required there are legal obligations they must fulfil before they can make you redundant.

As a freelancer there is no such obligation.  If the client decides there is nothing for you to do they can freely tell you not to turn up and not pay you, or even terminate the contract.  This happens frequently when budgets are squeezed at year end.  Many companies will tell their contractors to take unpaid breaks of one or two weeks or more in order to save money until the new budgets can be approved.  They can't do this with permanent employees.

The tool has completely omitted any questions around this, presumably because it's a silver bullet for IR35 status.

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What is going to happen in April when every single Government Department realizes, they haven't got anyone to do the work?

The Gov is the single biggest employer of Contractors because they pay so low for permits. God knows how many projects will stop dead in their tracks, the Gov have ignored every warning and deserve every embarrassment coming to them!
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