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By Lynne Gowers on 13th March 2017
With less than a month before major changes to the way IR35 is applied in the public sector, HMRC’s much-touted digital Employment Status Service tool has gone live. It is intended to assist workers, or anyone taking them on, to assess their employment status for tax.
From 6th April the responsibility for making the IR35 status decision will transfer from the individual operating the personal limited company (PSC) to the public sector body they are working for.
At the same time, the responsibility for making the necessary deductions will be that of the “fee payer” – the body paying the PSC – be it an Employment Intermediary, Agency or the Public Sector body.
According to the guidance notes, anyone using the service must first know the following:
Using a series of questions, the ESS tool makes a determination as to whether the worker is employed or self-employed for tax, National Insurance or VAT purposes. The questions cover familiar IR35 ground, examples include “Can you provide a substitute and if so, have you ever supplied one?” and “How much control do you have over the work you perform?”
The tool produces one of three different outcomes according to the information it is fed:
“The intermediaries legislation applies to this engagement” = Caught by IR35
“The intermediaries legislation does not apply to this engagement” = Not caught by IR35
“Unable to determine the tax status of this engagement” = Can’t give a yes or no answer and directs the user to further HMRC guidance.
1. It is official rather than mandatory. Public sector bodies won’t have to use it as their means to determine IR35 status. Indeed many public sector bodies are making a blanket decision that all their limited company contractors will be caught by IR35 from 6th April.
2. There’s no guarantee the result is right! In their own words, HMRC states that they will “stand by the result unless a compliance check finds the information provided isn’t accurate.” In effect, HMRC just have to say “you are wrong” and the decision doesn’t count for anything.
3. There is no formal appeal process. If a worker using the tool get a different status outcome from the decision of their public sector body, they have no currently no legal means to challenge it.
The view of ContractorCalculator CEO, Dave Chaplin, is that “the live public version of the tool that HMRC released on 2 March is still failing to cover key areas of employment case law and is simply not fit for purpose”.
We continue to monitor developments with interest. If you are a Boox client working in the public sector and have not already spoken to us about how April’s changes will affect you and your business, get in touch to arrange a 1-to-1 telephone consultation.
For clear, balanced advice and all the latest news on IR35, go to https://www.ir35helpline.co.uk/
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