It’s also possible you’ve heard stories of contractors who have fallen foul of HMRC, and had their IR35 status retrospectively investigated by the tax office. But do you fully understand it?
What is IR35?
IR35, or the “Intermediaries Legislation”, was introduced in April 2000. It was a response to increasing numbers of ‘disguised employees’, particularly within the IT sector, setting up as Limited companies but working exactly as they did when they were employees – fixed days, fixed hours and the same responsibilities. This allowed these workers to gain the tax advantages of operating through a Limited company, particularly relating to National Insurance and VAT, without actually changing their relationship with the client. Since the introduction of IR35, HMRC’s position has been that ‘if it looks like an employee, acts like an employee and works like an employee – it’s probably an employee!’
How do I know if I’m inside or outside IR35?
IR35 status is a complex issue, and anybody subject to an IR35 investigation by HMRC will find their business practices scrutinised in detail. The first place HMRC will look is at the contract, but the investigation can extend beyond this. In practice, there are a few key criteria that will let you know if you’re operating inside or outside IR35:
Control. If the client has control over the worker, they’re likely to be deemed inside IR35. For example, if you have to complete your work in a specific fashion or following company procedures, you’re inside IR35. If you have freedom to complete work as you see fit, you’re more likely to remain outside.
Substitution. Can you send somebody else to do the job for you? If the requirement is that you complete the work, rather than that the work be completed, you’re inside IR35.
Mutuality of Obligation. Is the client required to give you work, and are you required to accept the work? If so, you’re acting as an employee and will again find yourself inside IR35.
Passing these three criteria doesn’t mean you’re definitely outside IR35, although it’s a good benchmark. A good contractor accountant will review every contract before you accept it, and advise on your IR35 status. Complex or ‘borderline’ contracts may require specialist legal advice – however, this is rarely likely to be necessary.