Tag Archive | "EBTs"

Figures on IR35 DO exist. So who’s kidding who?

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.

About the author: Alan Watts

Alan has worked in IT for most of the last 35 years, and first went freelance in 1996. He has been a PCG member from its start and has been spreading the message that freelancing is a professional career choice for many years. Alan also runs Malvolio’s Blog, a personal but highly informative take on the life of the modern freelance.

Alan Watts, Principal Consultant, LPW Computer Services

© 2011 All rights reserved. Reproduction in whole or in part without permission is prohibited.

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Are contractor accountants confused by tax avoidance policies?

The Finance Bill (2010) has laid down specific provisions for MPs regarding tax avoidance, although one tax expert says there is no obvious reason why this should occur.

Grant Thornton’s tax director, Mike Warburton, made his comment after it emerged that section 554E (8) of the Finance Bill included a clause saying that the disguised remuneration legislation did not apply to members of the House of Commons.

The new legislation on disguised remuneration schemes such as Employer Funded Retirement Benefit Schemes and Employee Benefit Trusts is intended to stop the complex arrangements some employers have been using to avoid income tax. Warburton said he found it difficult to understand why MPs need this exemption.

A spokesman from HMRC said the Independent Parliamentary Standards Authority makes payments to MPs so that they can carry out their parliamentary responsibilities. These payments have been excluded from the new legislation because they are not tax avoidance. However, arrangements made by other third parties were not excluded from the new regulations.

The tax avoidance rules are thought by many to be too complicated and it is not clear which benefit schemes are covered by them.

The government has also closed the loophole that allowed people to avoid tax through the Qualified Registered Overseas Pensions scheme. QROPS lets people who relocate overseas to liquidate their UK pension. However, it was discovered that there was a clause in an agreement with Hong Kong that allowed people to transfer their pension there but still remain a resident of the UK. This legislation has now been changed in the Finance Bill.

Exchequer secretary, David Gauke, said the coalition has a clear strategy for combating tax avoidance and it will take action against anyone who takes unfair advantage of tax loopholes.

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Agency Workers Directive – what ever happened to “simplification”?

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”?

About the author: Alan Watts

Alan has worked in IT for most of the last 35 years, and first went freelance in 1996. He has been a PCG member from its start and has been spreading the message that freelancing is a professional career choice for many years. Alan also runs Malvolio’s Blog, a personal but highly informative take on the life of the modern freelance.

Alan Watts, Principal Consultant, LPW Computer Services

© 2011 All rights reserved. Reproduction in whole or in part without permission is prohibited<

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So when is a business not a business?

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…

About the author: Alan Watts

Alan has worked in IT for most of the last 35 years, and first went freelance in 1996. He has been a PCG member from its start and has been spreading the message that freelancing is a professional career choice for many years. Alan also runs Malvolio’s Blog, a personal but highly informative take on the life of the modern freelance.

Alan Watts, Principal Consultant, LPW Computer Services

© 2011 All rights reserved. Reproduction in whole or in part without permission is prohibited<

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IR35 – a slap in the face? Well, no, not really

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.

About the author: Alan Watts

Alan has worked in IT for most of the last 35 years, and first went freelance in 1996. He has been a PCG member from its start and has been spreading the message that freelancing is a professional career choice for many years. Alan also runs Malvolio’s Blog, a personal but highly informative take on the life of the modern freelance.

Alan Watts, Principal Consultant, LPW Computer Services

© 2011 All rights reserved. Reproduction in whole or in part without permission is prohibited<

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Motion vs. progress?

Usually I find one thing to talk about each week; even in the depths of the silly season there is something relevant to freelancing worth trying to write a few hundred words about. This week, for some reason, I haven’t found a single thing. Perhaps I’ve been a bit too busy to notice – you could say the current client presents some interesting challenges – but I have tried. Honest…

The main event in the news – well, the BBC version of the news so it really must be important – is all about the Millibands and the will-he-won’t-he tedium of will big brother work with little brother or not (and he won’t, it seems). Sorry but from here I really don’t care that much. While Her Majesty’s Opposition is an important element of the government process, precisely who wears the various labels in the Shadow Cabinet is actually fairly irrelevant. Unless you’re interested in who fights the next election, which is far enough away to be of zero interest, I’m afraid. And anyway, I’m a contractor; there are far more important things to worry about.

One of them is a bit of a debate on EBTs. I’ve said before that these may be a good thing for some but you have to go in with your eyes really wide open. The risks are just that bit too high if you don’t fully understand the scheme and, equally importantly, the government’s attitude to them. My point is that since HMG have effectively shut down EBTs from next year, people who sign up to one now are at a considerably higher risk of investigation than those who have been using them for some time. This, for some people, seems to be an unreasonable position. Heigh ho…

There’s been another discussion on Security Clearances and the old Catch-22 of no clearance no job, no job no clearance. Somehow this has mutated into a discussion about how clearance works. That’s really not what it’s about, the process and the parameters work well and are pretty effective. All I’m really interested in is being allowed to get in front of the hiring manager to sell my services, which is something that I and a majority of other contractors can’t do at the moment. I’m more than happy to take my chances of persuading a hirer that I’m worth the effort of sponsoring for clearance, but I can’t do that if I can’t ever get to meet them.

And of course the whole visa issue rumbles on. This is getting increasingly confused, not helped by a certain Mr. Cable’s interventions. Nobody is saying we shouldn’t allow ICTs; there are plenty of instances where they are entirely justifiable. However, when you consider that some of the people complaining about the proposed cap on them haven’t actually used the ones they are allowed to use, just what is the problem? Apart from reading that a small number of companies from one country have brought in several thousands under ICT visas. The argument is not about ICTs, it’s about misuse of ICTs. Some supposedly well informed people will insist on missing that minor detail.

So, lots of motion, not a lot of progress. Bit like the current contract, really.

Alan Watts can found at LinkedIn.
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Budget? What Budget?

There was quite a lot of minor change in the Budget, and we should praise the intention to focus on helping businesses with a raft of measures, but for us one man consultancy companies there was actually nothing of very much interest in there. With VAT, Corporation Tax and allowances all staying the same, there will be almost zero impact on most of us.

A lot of the business friendly things won’t really impact me, of course. I don’t pay business rates since like most freelances I am something of a nomad. I don’t have a lot of capital expenditure so changes in Investment Allowances are immaterial. I welcome the intention to increase access to HMG contracts by 15%, but that’s not happening until the end of 2010.

So all in all, something of a non-event.

Unless, of course, you are using one of the more imaginative payment schemes. There is a strong anti-avoidance programme tucked away in the detail – that’s all the things that Darling Alistair doesn’t burden his audience with in the House – some of which will impact some freelance workers. For example, payments via loans will be shut off by the simple expedient of making the loan write-off liable to CT and hence uneconomic. There is a clear message that EBTs in all their forms will be closed off. Add to that some additional international taxation treaties (including one with Belize, stamping ground of Tory donor Lord Ashcroft. Funny, that…) and a re-emphasis of the rules of Double Taxation; clearly some people are going to have to rethink how they manage their money.

And of course, tax allowances have been frozen which is, as Osborne pointed out, just another Labour stealth tax. Darling’s justification made me smile as well. The indexation is based on the previous September’s inflation rate, which just happened to be negative. “Reducing them would be daft” said Alistair. Really? I think it would have been entirely fair, since those are the rules. Heigh ho…

Away from the Budget and there was another major piece of news that, perhaps surprisingly, has gone largely unnoticed. As a result of campaigning by the PCG, there has been a bit of a rethink on the rules surrounding ICT visas. These are the route that some companies are using to bring non-EU workers in to displace more expensive (allegedly) UK workers. The parameters have been significantly tightened, some taxation loopholes closed off and the original Tier 2 split into three distinct classes. The net result is that imported ICT-based labour will be less economical to use, easier to limit and more difficult to bring in.

These changes actually go farther than the PCG was asking for, which was a welcome if slightly surprising result. It is however a vindication of the power of effective lobbying and, incidentally, an indication of how much clout the PCG is beginning to assert. Well done to them, says I.

Of course, like the Budget itself, it remains to be seen exactly how effective these measures prove to be in the real world. But at least the ICT changes have a decent chance of surviving the next election and achieving tier aims, which can’t really be said about Darling Alistair…

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Offshore tax evaders in line for tough penalties

In his Pre Budget Report last week, the Chancellor outlined further plans to clamp down on individuals who utilise offshore bank accounts in an attempt to bypass the UK tax system.

Following a low take up of HMRC’s New Disclosure Opportunity (NDO), where those sheltering tax in offshore holdings are encouraged to declare these to HMRC, the government is now set to introduce a hefty 200% penalty for non disclosure.

It has been estimated that up to 100,000 people hold assets (such as cash and property) in offshore accounts yet as little as 10 per cent have actually come forward under NDO.

With government coffers at an all time low, most contractor accountants think that it’s no surprise to see further action on offshore tax evasion which, according to government figures, cost them in the region of £45B per year in lost revenue.

The new deadline for NDO is 4th January 2010. Anyone making offshore declarations before this date will be subject to a 10 per cent tax penalty plus interest where applicable. Commenting on the latest campaign, a spokesperson from HMRC said that this would be the last chance for those with offshore accounts to come forward before the prospect of tough tax penalties next year.

Paul Roberts, head of tax investigations at Grant Thornton, said that: “HMRC will stop at nothing to claw back missing tax revenue to UK shores. The severity of HMRC’s pursuit should come as no surprise.”

“Such a draconian penalty relating to tax evasion existed for many years but fell away in the late 1980s. This demonstrates the resolve of HMRC to follow through its threat to punish those who have not taken advantage of both the NDO as well as the earlier Offshore Disclosure Facility.”

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