So this is Christmas, and what have we done? Well, speaking personally, quite a lot in one way and another. But it has been a funny old year in some ways.

Last December I was being optimistic about the Coalition making significant changes in various things. I was cautious about IR35, thinking they wouldn’t be a position to repeal it out of hand, but I didn’t expect young Osborne to come out in the Budget with the statement that he needs to keep IR35 to prevent abuses of the system. Which is kind of where we came in.

He did set up the Office of Tax Simplification though, and from there has sprung the IR35 Forum. The former has turned into something of a toothless wonder, getting ever more bogged down in detail. The more cynical among us might be tempted to suggest that this is because a lot of the parties around that table have something of a commercial interest in keeping IR35 exactly where it is, but that would be an unworthy thought. Wouldn’t it….

The IR35 Forum is still to produce anything but it looks like it can at least claim it has a direction and an intent that its parent body is sadly lacking. However we won’t really know much more until the next Budget.

In reality the best we can hope for is that IR35 remains as is, but Hector is rather more competent at judging who to stick under its microscope.

The Agency Workers Regulations arrived and caught all the agencies by surprise – hey, they only had a year’s warning, so what do you expect – leading to a flurry of letters demanding that you declare yourself outside its scope. Tricky, when anyone is potentially inside its scope and we have no case law to work with. Plus can change as they say.

The Cabinet Office was presented with a major paper on Security Clearance following a detailed, wide-ranging research project led by PCG, who highlighted what’s wrong with the system and, perhaps more importantly, what damage is being done. And even some options for how to fix it. This has been very well received and personally I am delighted, having been pressing for this kind of thing to happen for around eight years now.

Several IR35 appeals were completed, all but one of which were found to be outside, so reinforcing the status quo if not setting any new precedents. The other was the one I wrote about just last week, where the guy was found to be outside and then outside, all in the same contract. I think we’ll park that one in the folder marked “Say What?” and just forget about it.

The Market: now that’s interesting. The financial sector suffered an almost universal 10% rate cut during the year, with a few going even further. The rest of the world, however, seems to be plodding along at the same level. Lots of contractor layoffs and enforced holidays as well – again, only in finance. There are nowhere near as many jobs as they were, and rather more people chasing them, but you have to say that, taken as a whole, things aren’t as bad as some were predicting. The job losses seem to have been in the permanent market, so you have to conclude that UK PLC is sticking with easily-disposable temporary resources until they can see the light at the end of the tunnel. A light which is most likely to be a train coming the other way, if the pundits are to be believed.

And best news of all – our favourite MP and failed tax evader, the fragrant Ms Primarolo, is standing down at the next election.

So it’s been a difficult year for many but not a disastrous one, overall. Speaking for myself I’ve been gainfully employed most of the year, and am hopeful of that continuing a while longer. I’m looking forward to a week off eating and drinking far too much – and not having to face a sheet of blank A4 on Thursday night – before having to face the 7:15 from Bristol in the bleak midwinter again.

Have a good one.

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Image: new check cover by jelene

I really must think about writing these jottings earlier in the week. I routinely find myself talking about things that have just happened rather than predicting what’s about to happen. Although, of course, that does mean I can be a little more accurate in what I’m saying. Better late than never I suppose…

But this week’s major news in contractor world was PCG’s third National Freelancer Day, which as we all know is held on November 23rd. This is an event that celebrates the role of the freelance worker in today’s economy and is primarily aimed at ensuring the value they bring to the UK is recognised.

The event is going from strength to strength, with ever increasing participation. It was picked up in a wide range of places, including the Twitterverse and a host of freelancer websites. More importantly it not only the mainstream press but we even got a mention from Evan Davies on Radio 4 and a ringing endorsement of the freelance profession from some politician called Dave, who said “This Government recognises the valuable contribution that freelancers make to the economy and, as more and more people choose to join your ranks, you have all our support”. He’ll go far, that lad, you just watch.

So PCG are to be congratulated on a job well done. Again.

Elsewhere though, things are giving off mixed messages. There has been a lot hand-wringing about rate cuts and job losses affecting contractors. Which is quite worrying, with all this fear of double-dips (still think that sounds like an ice cream) until, that is, you look a little more closely.

These cuts are only happening in banking and finance. Other people aren’t seeing cuts in rate – I know I’m not, if a sample of one is useful – and others are actually saying they’ve got a raise in rate. There are plenty of reported contract extensions out there as well. Just not in banking. How odd.

Another point, if you are of a suspicious mind like me, is that all the banks are cutting by the same rate, a precise 10%. Nice round number, of course, but it is just a little odd that they all see the need to make the same cut regardless of how well or how absolutely dreadfully they are faring. One might even think they were working to the same hymn sheet. Surely not: they are, after all, in competition for the best resources and paying a shade more than the competition is one way to secure them.

But hey, these are banks, after all. It’s not like we expect them to understand economics or anything. So it must just be a fluke of timing and cost accountancy.

Ah but, it’s also interesting to note the response of the guys being hit by these cuts. The proportion that react with “That’s it, I’ll go somewhere else” to those whose reaction is “90% of something is better than 100% of nothing so I’m staying” has reversed totally, with the latter group now prevailing. Mostly that’s because the feel there aren’t the jobs out there to be had, which is understandable. And in fact they’re probably right; the vacancies created by the macho “I’m outa here” brigade don’t exist so there is nowhere to go. Rather than a big round robin with the worst performers falling off the bottom, as happened last time around, everyone has stayed on their chairs. And that, if you’re the banks, is actually something of a result; keep the same staff, no retraining needed, and 10% of quite a lot of money to feed into the bonus pot.

OK, so perhaps the banks aren’t all that stupid after all.

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Image: Facing My Manga by Rob Boudon

It is interesting to note that before an MP takes his or her seat in the House they are required, by a law dating back to 1562, to swear or affirm an oath of allegiance to the Crown. Perhaps surprisingly they do not make any promises to behave but rely on a long tradition of honest and open behaviour instead. Which is perhaps a good thing; MPS are, after all, honourable people…

Our friends in the PCG have been asking questions of HMG again, digging even further into the financial history of IR35. And they now have a breakdown of the cases and income arising for the whole life of the law to date. And it makes for fascinating reading (OK, fascinating if you’re a detail freak like me, I admit).

Nevertheless, the total number of cases to date is 4208. The total income from IR35 is precisely £12,126,572.00. And that means that the average tax gained per case is £2,881.79p. Be still my beating heart, Gordon must be so proud.

This, you may recall, from a tax measure that was intended to bring in around £900m. A year. Every year. So not exactly a resounding success then. And we don’t yet know the cost of collecting that twelve million, but with the average case costing the defending side about ten thousand, we could make a worst case stab at around five thousand for HMRC’s side. This means, even if vaguely accurate, they spent twenty one million to gain that twelve million. Hmm… Not looking good, is it?

The distribution of the cases over the years is also interesting. Sixteen cases the first year, a couple of hundred the next. It peaks in 2004 and then drops away remarkably quickly so that in the last two years there have been just thirty five. That distribution coincides rather neatly with the time that PCG got its act together and started to get the message out that IR35 is largely a voluntary tax, if you know what you’re doing.

Ah yes, “voluntary”. What we don’t know is how many people are paying up under IR35 or working through umbrellas to avoid it, which amounts to the same thing. There must be quite a few, there are lots of people using umbrellas. So we have an unknown amount of taxes being paid for no reason at all other than fear, or at least uncertainty, over how a law of the land actually works.

So what was my first paragraph all about, I hear you ask.

We’ve been asking for the numbers for a long time. Since around 2003, in fact, when we first started to think things weren’t going well for HMRC. And answer came there none. Well, not strictly true, that well known failed tax evader, Ms Primarolo, replied to a written question in 2004 (when there were exactly 771 cases and precisely £1,973,851 in IR35 taxes paid) that it was not possible with any accuracy to isolate data relating solely to this legislation. Furthermore, a year or so later, Kitty Ussher said in response to the same question, “Disclosure of HM Revenue and Customs’ compliance data relating to the legislation would result in a risk of non- compliance with the legislation. Accordingly I am not able to provide the data requested”. Don’t know about you but I see that as a fudge of the highest order.

But, as we have seen, the numbers have been there all along. Perhaps the honourable ladies were so embarrassed by the total disaster they were defending that they chose to evade the question. Dim Prawn is still in Government, and is reduced to only being able to threaten MPs as a Deputy Whip. Ms Ussher was forced to resign over being caught evading – sorry, didn’t mean that, I meant avoiding – paying quite a lot of taxes on the sale of her house.

As I said, honourable members both.

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Image: IR35 Tax Yield by some dude who wants to be famous

As well as being technically proficient, independently minded and a bit intolerant of rigid work patterns, we’re also a tolerant bunch, us contractors. You kind of get used to having to dig out the truth from the often intentional obfuscation you get from the agencies, the client, the civil service and a host of other places. And you get to recognise some universal truths.

“Cyclists can ride safely on footpaths”. Yeah right…

“All contractors are very well paid”. Well we aren’t exactly running on empty, but we are usually pretty good at what we do, and command a decent rate accordingly. But the average rate for IT contractors as a whole is around £40 a hour these days,which is near as damn it the same net take home as a permanent employee on £40,000 a year; good but not exceptional.

“We require you to opt out of the Agency Regulations”. No you don’t. For one thing it’s nothing to do with you, Mr Agent. It’s not my problem if you’ve agreed a contract with the client that is incompatible with the requirements of an Opted-In contract for me. Since 95% of all Opt Outs aren’t legally correct, from what I’ve seen, why not work on the assumption that everyone is opted in? Ah, of course, then you wouldn’t be able to claim that the workers you supply are your own dedicated resources, would you?

“Opting In is highly beneficial”. Well, is it? The two key gains are guaranteed payment and a time limit on handcuff clauses. The former may have a superficial appeal, but if the agency’s not got any money they aren’t going to pay you anyway. The latter looks nice, but there will be the upper contract between agency and client that almost certainly stops them taking you on for at least as long as the period in your own contract. So where’s the handcuff limitation protection then?

“Retain 85% of your gross with our compliant solution”. Yeah, right. You do until the scheme gets legislated out of existence, the scheme owners do a runner or you discover the scheme doesn’t actually work in the first place. Then again Hector has recently given up trying to shut down some of these schemes because they can’t safely separate out those who should genuinely use them, like pension funds, and those who are taking advantage. Although that won’t stop them trying.

“We need to retain IR35”. Ah, now, hang on a minute. That was Osborne’s position in the last budget, when for a while we thought we had proven that IR35 was not only damaging and spiteful, it wasn’t actually earning any money for HMRC. The case was slightly hampered by the repeated assertion that there are no figures specifically covering IR35 within the ledgers of the Treasury. So we kind of accepted Osborne’s assertion that he needed it to dissuade Friday-to-Monday converts. (This despite one of the more obvious cases being Mr Hartnett, ex permanent Head of HMRC, now freelance Acting Head of HMRC. Didn’t even have to empty his waste bin). And the implicit assertion that since he wasn’t keeping any measure that wasn’t cost-effective, then IR35 was paying its way.

Then, all of a sudden, PCG gets a very interesting answer to an FIO request. It seems those figures do exist. What’s more, they are pretty damning: total case prosecuted over the last five years? Three hundred and twenty two. That’s slightly over one a week. Total revenue gained as a result? Five million, four hundred and forty two thousand, two hundred and ninety nine pounds. A shade over a million a year. Or just under seventeen thousand per case, assuming all were successful, which they almost certainly weren’t. Doesn’t exactly go very far against the one trillion government shortfall, does it…

Ok, so this is interesting. We have been told more than once that no figures on IR35 were being kept. You can even find that in Hansard. Now, suddenly, they have been. Most odd. So who’s kidding who, Mr Osborne?

And who in the previous administration was responsible for the earlier statements. I think we need to be told.

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Image: Urban Art by freeflyer09

I was somewhat taken aback this week to read that someone in government had had a fit of the vapours and said something sensible. Even more confusing was that this was from the Labour side of the House. Although, just to restore my faith in human nature, he’s been shouted down by the rest of his side.

This was Lord Glassman, who has said that we need to put a freeze on immigration. Not a cap or a phased reduction, but a total stop, with the sole exception of the small number of skilled people we actually need to encourage to come over.

Of course none of this would be an issue if we had a better history of controlling who’s coming in, but we are where we are. At least we have some much more effective rules in place to bring a bit of sanity to the ICT system these days, which is the bit that really concerns us IT people. And for which, let us not forget, we owe a debt to the work the PCG has been doing over the years.

But as usual, nothing is as it seems.

There’s a bit of a debate going on about the new rules, centring of all stupid things on payable expenses, that well known fiddle factor beloved of the umbrella companies and assorted MPs…

But I digress. The rules set a minimum salary for the ICT candidate. However, with the usual stunning clarity of purpose, they haven’t actually defined how that salary should be made up. So you can include, for example, the costs of bringing your worker over here and giving them somewhere to live while they’re here.

Then we get into the Kafkaesque realms of do we include expenses paid for travel and accommodation while working somewhere else? I mean, let’s just think about that for a moment. You ship someone into the country, pay for their accommodation and give them a living wage. Then they have to go somewhere else on your behalf, for which you are paying the bills (or damned well ought to be). So how can that be part of their gross salary? Because I’m willing to bet that they never see any of it; if they did, their payslips wouldn’t be subject to the same level of secrecy as those nice people at GCHQ.

And just to pile on the ineptitude, the rules are being arranged so that “the taxpayer is not disadvantaged”. Excuse me? Taxpayer? The taxpayer, to the man on the Clapham omnibus, is someone who has a life here, a permanent address, is known to the gentlemen at HMRC. He’s not just popped over to perform a limited engagement (much of which seems to be to learn how to do the job so he can take those skills back home). And since his prime purpose is to take away work that could be done by someone who does live here, I’m afraid I’m not all that minded to be fair in how he gets paid.

Other countries have twigged this. Canada, for one, is taking positive action. How typical of our team that we try to treat them fairly and actively assist them in their efforts, less we tread on someone’s toes.

Talking of treading on toes, let’s give a small Hurrah for the PCG. Actually no, let’s make that a very large one. They have won not one but two trade awards, for electronic communication and membership success, against some much bigger (and older) organisations. Bearing in mind this is a very small team, the impact their work is having where it matters is out of all proportion.

Who said we need to import skills to ensure success…?

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Image: No entry by Morgaine

It seems that HMRC have found a rich new source of targets for IR35. One that has been, rather surprisingly, untapped since IR35 was first brought in but which, on the face of it, is  probably more of a target than the traditional IT contractors and engineers. And one that further illustrates the problems with using “in business” as a criterion for investigation.

It is being reported in The Stage that several “high profile” performers who work through their own limited companies have had nice letters from HMRC pointing out that they may owe many thousands in NICs, going back six years. This, needless to say, is causing some consternation among the luvvies.

Now this is interesting, to say the least. When IR35 appeared the fledgling PCG thought that the media people would be obvious targets in their own right; after all, they are supplied via agencies, and they are under the direction of their clients (literally, in many cases). And, of course, they have a much higher public presence and would have given the campaign against IR35 a serious boost.

Sadly the answer that came back was “it doesn’t apply to us”. End of discussion.

Now, however, HMRC seem to believe it does apply to them. Why now is a whole other question, but The Stage reports HMRC as saying that it “is not cracking down on actors or any other profession”.  Really?  Perhaps HMRC have only just noticed that actors exist; after all, such frivolities as the theatre and Television are not something you would normally associate with the average tax inspector. Still, not a crackdown then, more of a refocusing exercise then… Or something,

Similarly a prominent accountant is claiming that HMRC are moving the goal posts and reinterpreting existing legislation. Echoes of the Arctic case, where S660a was imaginatively applied to a situation it was never meant to cover (and, of course, S660a itself came into being as the result of an actor’s activities…). Except this time they’re not moving any goalposts, actually.  It has long been a mystery why actors, freelance journalists and assorted meeja people have escaped the predations of IR35 despite many blatant examples of them having what look like full time employments, to the extent they have claimed for unfair dismissal when those employments have ended.

So what has changed then? Clearly someone has removed a previous barrier for some reason. Perhaps it’s a pre-emptive strike to offset all those PCG members stepping away from IR35 altogether.

However, the point at issue here is what actually constitutes being in business, which HMG insist is the key separator for IR35 fodder. Is an actor in business? Apparently not, if you accept that actors are somewhat unlikely to grow and take on employees and capital assets. However, they have to bid for work against other similarly qualified people, they work through agencies, they don’t get paid if the play is cancelled and they can send in a substitute (except they call them either stand-ins or understudies).

There are also solid business reasons for working through a company. Like other contractors, they have to cover periods when they have no income, they have to cover expenses, they have to accumulate pension funds and insure themselves for illness. Just like all us other contractors, in fact.

So really the surprise is not that actors and the like are now IR35 targets, but that it’s taken so long for anyone to realise it. Still, there are 36,000 Equity members out there. That would be a nice addition to PCG’s membership…

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Image: Milton Friedman, Chicago Style by DonkeyHotey

The Association of Chartered Certified Accountants claims the government is not succeeding in its efforts to simplify the taxation system in the UK. The organisation says the coalition is taking one step forward and two steps back.

Since coming into office last year, the government has made 200 tax code changes, even though they promised to give us an easier, more streamlined tax environment.

ACCA’s head of taxation, Chas-Roy-Chowdhury, said the number of alterations that have been made means the coalition takes one step forward followed by two back in its efforts to simplify the UK’s complex tax system.

UK contractors have been affected by a number of these changes but the one change that is most sought after still remains. IR35 is still with us, although the government has pledged to overhaul it and improve its administration.

David Gauke, the Exchequer secretary, recently reiterated his commitment to improving IR35 after acknowledging that contractors in the UK are significant and important people in the business community.

Gauke explained that HMRC is going to completely overhaul the way it administers IR35. This issue has to be got right if we are to provide a fair tax system that enables professional contractors to provide their services in the best possible way.

Chris Bryce, the chairman of the PCG, said he was pleased the Minister had made this personal commitment and that he recognised the major difficulties that have faced freelancers for the past 11 years.

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Image: I Fought The Lawn … And The Lawn Won by JD Hancock

It’s time to get out the crystal ball, I believe. The inaugural meting of the shiny new IR35 Forum is on Friday 6th May. This is the body that Mr Osborne has charged with “improving the administration of IR35”. Which, given the present state of he administration of IR35, is a pretty open-ended kind of brief.

Clearly we aren’t going to see very much as a result of this first meeting. No doubt HMRC, who are in the chair, will present their Terms of Reference for the Forum’s agreement. Which will most likely be given, unless they contain something along the lines of “HMRC are right so there’s no point arguing” of course. They will agree the key issues such as which biscuits to buy and when next to meet, but that will be about it

But let’s assume they are honest about it – or that the other forum members keep them honest about it – and the objective is to deliver exactly what Osborne asked for, better administration of IR35. Let’s leap forward a year and see what may have happened. There are I believe three possible outcomes.

Firstly IR35 has been shown to be totally unworkable and will no longer be applied. Well that’s the dream result for some – like me, for example – but rather too far beyond the bounds of possibility. IR35 will still be festering away in the distance for a while yet. Heigh ho…

Secondly IR35 cases are only being brought against those who are genuinely within its scope. Well we can dream, but without changing the wording of IR35 so it becomes clear what that scope actually is, that is also a forlorn hope. For one thing HMRC are probably convinced that every case they’ve brought to date has been justified. For all their talk of “high risk” cases, if the rules aren’t changed the target stays the same; and that’s anyone that HMRC thinks they can bully into submission.

Finally IR35 cases are settled quickly and amicably. Yeah right. If there is no reduction in the number of cases being brought – and there aren’t that many in the overall scheme of things anyway – the only way to speed things up is for HMRC to start replying to the other side a lot quicker than they do. It’s not unusual for several months to elapse between each new step in the inquiry. Cases may well last for an average three years, but a lot of that time – probably 2 years 11 months of it – absolutely damn all is happening.

It’s also worth looking at the makeup of the Forum. There are HMRC people, tax experts of various shades, both independents and from the main industry bodies like ICAEW and CIOT, someone from the recruitment industry and a solitary representative of the freelance contractors in the shape of the PCG who, you might think, are the ones with the greatest interest in this whole debate. And who, it must also be said, are probably the only ones there who don’t have some kind of interest in maintaining the status quo. So clearly there is no question of the forum being biased in any particular direction then. Which is nice.

So I am not all that optimistic that anything significant will have changed. Although, along with 1.4 million other contractors, I would be delighted to be proved wrong.

Now there’s a challenge…

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Image: tubey fight by JSF539

I started a new contract this week, having had rather too long a break from real work. And not a moment too soon, to be honest. Apart from having an income stream again, it’s a lot more fun talking to intelligent people about real problems instead of chatting to the dog about where we should go walkies today. Not that he ever answers me, beyond a slightly lopsided grin and a frantic tail wagging session.

Which is rather how I feel about certain agencies over the last week or so.

Perhaps the stress of having to get up in the morning and go somewhere is getting to me, but I am getting increasingly irritated by the flood of emails from assorted agencies offering me work that is nothing to do with my CV. They obviously have my CV, or some version of it, since they get the name and email address right almost every time (apparently I am a Mr Wells according to one recent email). But hey, does that CV imply that I really can’t wait to go be a permanent change manager in Geneva for twelve months? Or sit on a help desk in Warrington on £20 an hour? (Gosh. Be still my beating heart…). Still, just like the dog, you have to pretend they understand what you’re telling them or run screaming in despair.

And that is why I am seriously worried about the upcoming Agency Workers Regulations.

PCG and others seem fairly confident that the regulations, which are aimed at ensuring temporary workers get the same protections as permanent staff after a short while, won’t apply to genuine contractors working through their own Limited Companies. While that may well be the case, I have a horrible feeling that the agencies won’t quite grasp the point. An industry that routinely confuses a senior Service Delivery Manager and sometime Head of IT with a Helpdesk worker in Warrington is really going to struggle with the concept that not everyone they place in a job wants to be protected.

Which means that rather than move the Agency/Contractor contract more towards a genuine business-to-business one, which would establish the true nature of the relationship with the end client, they will be telling everyone that you need to have even more draconian clauses in the contracts to reinforce that point that the contractor is not an employee of theirs, or the agencies, or anyone else. Honest. Cross my heart…

Which really is the wrong way to go.

After all, the more you try and nail the myth that someone is not an employee, the more HMRC is going to think you have something to hide. All those interlocking clauses about no rights to be implied and mutuality is not assured must be hiding something or why have them?

And anyway, I am employed by someone, in all meaningful senses; there’s this company that I work through that supplies all I need in the way of income and sick pay and holidays and pensions funding and the rest in return for me hauling myself over to Cardiff or wherever and doing my thing. OK, so I own it, but it is a separate legal “person” and operates totally in accordance with a whole pile of relevant statutes. Accept that it exists, and has a real purpose, and all this Agency Worker nonsense, not to mention IR35 itself, suddenly ceases to have any meaning.

If only someone could tell the agencies that…

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Image: No entry for big-haired cleaning ladies by lorentey

The final form of the guidance for the upcoming Agency Workers Directive has been published. This has not been the subject of any great debate so far, but it does have the capacity to really shake up some corners of the contractor market. And it appears to contain a sting in the tail.

The AWD has a noble aim; it intends to ensure that agency workers – which it defines as those providing temporary services to clients via an agency – are not disadvantaged in terms of the protections and rights enjoyed by full time employees. However, being an EU-derived concept, our beloved Civil Service has failed to recognise the very different nature of the “agency” model in the UK compared to the rest of Europe. While protecting the rights of the lower paid employee of the agencies supplying temporary staff to a whole raft of industries from farming to pharmaceuticals, it also wraps up the traditional freelance contractor in its scope. And that’s not a good thing.

In the earlier consultations, the PCG picked up on the potential for this scope mismatch and were assured that Limited Company contractors would be out of its scope. The early proposed form of the Directive did in fact specifically exclude those working through their own Limited Companies. That was not considered to be much of a problem, naturally enough.

Now, however, that phrase has been watered down. It contains a further qualification, “those operating as genuine businesses”. So here we go again, we are once more being presented with the finely crafted clarity of the mud-encrusted IR35 legislation.

You may recall that Osborne kept IR35 on the statute books at the last election as a deterrent to people who may incorporate to avoid the taxes they can no longer save by using offshore EBTs. My suspicion is that they have the same qualification about “genuine business” in the AWD for exactly the same reason. This is fine as long as there is a clear definition of a “genuine business”. Which there isn’t.

One of PCG’s objectives with the HMRC’s IR35 Forum (when it gets of the ground) will be to try and define how you recognise a genuine business. Simple enough if you’re Tesco or the corner shop, rather more tricky if you are a one or two man company selling your skills and knowledge to the highest bidder. The level of debate that has been engendered within PCG about how to make that definition has to be seen to be believed, so I have no expectation we will see a quick answer. .And until we do, we remain exposed to HMRC’s biased concepts. But hey, we’re getting used to that.

The other victims are the umbrella companies who will have to keep their “clients” – who are de facto employees of the umbrella – fed and watered while they are out of contract. Wonder if anyone has told those clients who will be paying for it…?

And finally, of course, those hugely risk averse recruitment agencies will see the AWD as yet another set of hurdles to overcome to prevent any possibility of their being made responsible for the contractors who they sell to the end clients as their own staff. Expect a whole new layer of miasma to creep into the contractor-agency contracts to ensure the contractor is obeying the demands of a law that doesn’t actually apply to them at all.

Plus ca change, plus ca meme chose. What ever happened to “simplification”?

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Image: morning face by silas216

That is a question that’s been exercising me and a few like-minded souls over the last week. And this existential philosophising has been prompted by the planned creation of the IR35 Forum, which aims to establish who is liable for consideration as IR35 fodder and who isn’t. So first a quick history lesson may be in order.

The idea of IR35 as a way to recover NICs avoided by use of dividends has been around for quite a while. It was certainly floated to the Thatcher/Major governements and was firmly rebuffed as being both ineffective and unnecessary. Still, treasury officials are nothing if not doggedly persistent (or doggedly bloody-minded, if you prefer) and it came up again when we switched to New Labour. And found an ally in the Paymaster General, the fragrant Miss Primarola.

However, Primarola – herself, let it be remembered, a failed tax evader (which takes a degree of ineptitude all by itself, having had a tax bill she didn’t agree with paid for by a supporter with perhaps more money than sense) – was adamant that IR35 was only aimed at people cheating the system,. Those “genuinely in business” need have nothing to fear.

Yeah, right…

So wind on ten years and we have a new government and IR35 cases are still being prosecuted almost at random; a recent case is against someone who has been providing services to multiple concurrent clients for several years. Like I said, the usual dogged persistence by HMRC. Or something canine anyway (or should that be lupine…?)

Anyway, now it turns out that we get to keep IR35 because it will stop people leaping from employment to freelance doing the same job to avoid paying the taxes they now owe since their offshore EBT money boxes have been slammed shut. This is almost as skinny an excuse as the original Dim Prawn explanation, but we can live with it, as long as IR35 is only aimed at these cowboy Friday-to-Monday converts and not us real businesses.

Osborne took the key OTS suggestion and has determined that the administration of IR35 needs to be vastly improved. Setting up the IR35 Forum for that very purpose is happening now. It is something of a shame that he didn’t take the extra step and set up something vastly to improve the administration of HMRC itself, but let’s be grateful for small mercies

So the IR35 Forum’s most knotty problem will be working out the common factors between Mr Patel at the corner shop, the guy with a successful SME business, the average jobbing contractor and the traditional self-employed and separating them from someone who genuinely has incorporated just to save paying some taxes. Perhaps they should look for the crossed fingers?

It ought to be as simple as saying your client today isn’t the same as your employer two days ago, you’re VAT registered and have a company bank account, but the more you look into it the harder it gets. This is one debate that I suspect is going to run and run. And one that whatever the outcome. A lot of people aren’t going to be happy with it.

If only we could wave a magic wand, bin IR35 and start from a clean sheet of paper. If only…

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Image: magnifying glass by Tall Chris

My blog for June last year was commenting on the first budget of the new Coalition government. It got a cautious welcome from me – which they no doubt appreciated greatly – and while the overall news wasn’t that wonderful, it at least looked like things were heading in the right direction.

I also mentioned an entry in the Red Book that “was a clear commitment to look hard at IR35. This was backed up by an interview in the Telegraph, where Mark Prisk emphasised the intention to lose IR35 altogether“. On that score for this budget, I have to say close, but no banana.

The Office of Tax Simplification made three suggestions for Mr Osborne; merge PAYE and NICs, either suspend IR35 or greatly improve how it is administered and maybe look at some tests to define who is employed and who is a freelance. Those of us in the “IR35 is the spawn of the devil” camp clearly hoped that suspension would be the result. Sadly, however, it was not to be; IR35 remains in place.

So a bit of a disaster then? Well, no, not really.

Firstly I’m inclined to believe Osborne and Gauke when they say that they could not afford to turn off IR35. Elsewhere in the Budget they confirmed the December 9th announcement regarding the closure of offshore EBTs that are being used to step around paying any taxes at all by many high earners. Without IR35, these guys would simply incorporate and go back to the same old job as a pretend freelance: the classic Friday-to-Monday soft shoe shuffle. With IR35 still there, they can still incorporate if they really want to, but the tax advantage would simply not be worthwhile. Which makes a degree of sense as far as I’m concerned.

Secondly, administration of IR35 is to be improved (I was going to say “greatly improved”, but it could hardly get any worse!). In other words, stop spending tens of thousands on five-year cases that invariably lose and focus instead on the ones where there may be a genuine case to answer – which, on current numbers, is about 3% of them. HMRC aren’t doing this by themselves, they will be talking to the experts on contracting who will be very clear that the net will be focused and not widened. HMG have invited PCG to be a key player in this, and for one I’m reasonably certain PCG won’t let anything through HMRC’s clutches that makes things worse for the genuine freelance.

Finally Osborne is now looking to merge PAYE and NICs. As I said last week this is a very difficult thing to achieve, but at least we have a chancellor willing to take it on. That means that if this can be made to happen, IR35 ceases to have any purpose anyway

The rest of the budget was, I thought, probably about as good as it could be given the starting position. OK, so Osborne has done a smoke and mirrors job by changing how inflation is measured and people who understand the Oil and Gas industry far better than I do are seriously dischuffed about the raid on their profits to fund the fuel equaliser, but the intent is sound.

So not the result we hoped for, nor even the result we would have quite liked, but at least we are still in there and having a direct say on how we are to be taxed. This is, despite the cries of outrage from the hard of thinking, no small achievement. PCG and Chairman Chris Bryce have done a seriously significant piece of work via the OTS and should be praised for it.

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Image: The Small Hand that Kills (41th/52) by skippyjon