Government acts to close employment intermediaries tax loophole
11 December 2013
The government has published proposals to close a legal loophole being used by employment intermediaries to avoid tax by disguising employment as self-employment.
Wed, 11 Dec 2013The government has published proposals to close a legal loophole being used by employment intermediaries to avoid tax by disguising employment as self-employment.
The government’s intention to clamp down on the use of false employment models through the use of employment intermediaries have been broadly welcomed by professionals working in this field. However, John Chaplin, global head at EY, says he is not convinced the proposals would be effective.
The proposals, published in a consultation document, follow a commitment made by chancellor George Osborne in his recent Autumn statement to consult on the issue before bringing in legislation in the Finance Bill 2014.
The government says is intends to legislate to remove a clause often included in contracts between an employment intermediary and a worker. This clause allows the worker to send someone else to do their job, something which in reality the government believes does not happen. However, under existing legislation such a clause allows a worker to be classed as self employed.
The use of such contracts means that existing agency legislation in the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) is sidestepped, and as a result, the worker is treated as self-employed and not employed for tax and National Insurance purposes.
Not only does this result in a loss to the Exchequer, but the worker also loses employment rights, and rights to statutory payments, with any financial savings often shared between the intermediary and the engager.
The government says it intends to remove this obligation to provide their services personally. Under the government’s proposals the agency legislation will apply where the worker:
Where a worker is engaged by or through an intermediary and meets the conditions above, they will be deemed to be employed for tax purposes.
Matthew Brown, managing director of giant Group, tells recruiter.co.uk: “I think the proposed legislation, if drafted carefully, will stop the mass marketing of false self-employment by intermediaries, especially when those same intermediaries will themselves be liable for any unpaid employment taxes, will have a quarterly reporting requirement to HMRC for any workers they believe are genuinely self-employed (where they will have to justify self-employment) and the possibility that the government might introduce TAAR (Tax anti-avoidance rules) legislation as well.
“It will remain to be seen whether these intermediaries who are affected by the introduction of the legislation will instead mass market the use of PSCs (personal service companies) to these workers and run the risk – for the worker not them – of an IR35 investigation.”
EY’s Chaplin tells recruiter.co.uk: “At first blush, the government wants to close down any intermediary where the worker has any element of control exercised over them by the intermediary.”
Chaplin says he welcomed the government’s intention to clamp down on the false employment model. However, he adds: “I am not convinced that it will be that effective. It relies on this element of control, and I think it is in danger of capturing situations that are perfectly legitimate and are not false self-employment, but also of not capturing some of the abuses where individuals are clearly not self-employed but are still deemed to be by whoever is paying them.”
Sam Hurley, head of external relations at the Association of Professional Staffing Companies (APSCo), tells recruiter.co.uk that she thinks the proposals, if implemented, will do what the government intends.
She said that her initial impression is that the proposed legislation will allow the self-employed employed intermediary model to continue to be used by highly paid professionals. She added that the caveat is that there are “no unintended consequences” for the professional sector.
The government’s intention to clamp down on the use of false employment models through the use of employment intermediaries have been broadly welcomed by professionals working in this field. However, John Chaplin, global head at EY, says he is not convinced the proposals would be effective.
The proposals, published in a consultation document, follow a commitment made by chancellor George Osborne in his recent Autumn statement to consult on the issue before bringing in legislation in the Finance Bill 2014.
The government says is intends to legislate to remove a clause often included in contracts between an employment intermediary and a worker. This clause allows the worker to send someone else to do their job, something which in reality the government believes does not happen. However, under existing legislation such a clause allows a worker to be classed as self employed.
The use of such contracts means that existing agency legislation in the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) is sidestepped, and as a result, the worker is treated as self-employed and not employed for tax and National Insurance purposes.
Not only does this result in a loss to the Exchequer, but the worker also loses employment rights, and rights to statutory payments, with any financial savings often shared between the intermediary and the engager.
The government says it intends to remove this obligation to provide their services personally. Under the government’s proposals the agency legislation will apply where the worker:
- is subject to (or to the right of) control, supervision or direction over the way their duties are carried out
- provides their services personally
- is remunerated as a consequence of providing their services
- and receives remuneration not already taxed as employment income.
Where a worker is engaged by or through an intermediary and meets the conditions above, they will be deemed to be employed for tax purposes.
Matthew Brown, managing director of giant Group, tells recruiter.co.uk: “I think the proposed legislation, if drafted carefully, will stop the mass marketing of false self-employment by intermediaries, especially when those same intermediaries will themselves be liable for any unpaid employment taxes, will have a quarterly reporting requirement to HMRC for any workers they believe are genuinely self-employed (where they will have to justify self-employment) and the possibility that the government might introduce TAAR (Tax anti-avoidance rules) legislation as well.
“It will remain to be seen whether these intermediaries who are affected by the introduction of the legislation will instead mass market the use of PSCs (personal service companies) to these workers and run the risk – for the worker not them – of an IR35 investigation.”
EY’s Chaplin tells recruiter.co.uk: “At first blush, the government wants to close down any intermediary where the worker has any element of control exercised over them by the intermediary.”
Chaplin says he welcomed the government’s intention to clamp down on the false employment model. However, he adds: “I am not convinced that it will be that effective. It relies on this element of control, and I think it is in danger of capturing situations that are perfectly legitimate and are not false self-employment, but also of not capturing some of the abuses where individuals are clearly not self-employed but are still deemed to be by whoever is paying them.”
Sam Hurley, head of external relations at the Association of Professional Staffing Companies (APSCo), tells recruiter.co.uk that she thinks the proposals, if implemented, will do what the government intends.
She said that her initial impression is that the proposed legislation will allow the self-employed employed intermediary model to continue to be used by highly paid professionals. She added that the caveat is that there are “no unintended consequences” for the professional sector.
