Following the publication of HMRC’s draft legislation for off-payroll working in the private sector, the Association of Professional Staffing Companies (APSCo) has voiced disappointment that fee payers will be liable for incorrect status determinations of PSC contractors. On the changes, that are due to come into force in April 2020, Samantha Hurley, Operations Director at (APSCo) and Co-Chair of HMRC’s IR35 Forum, commented:
“While the draft legislation is largely in line with our expectations, we at APSCo are extremely disappointed that fee-payers will shoulder the liability of incorrect status determinations – particularly as this is at odds with what was anticipated. It is frustrating that recruiters will, in most cases, continue to bear the brunt of liability in the supply chain whether as the fee payer or the first tier supplier.
“We also believe there should be more clarity around the meaning of a status determination statement. At present, the client ‘complies’ if it provides the decision with reasons to the party contracting with it in the chain and the worker – regardless of whether HMRC ultimately decides the decision was correct – but how much detail should go into this reasoning? Similarly, the legislation states that ‘reasonable care’ should be taken, but there is not yet any certainly around what ‘reasonable’ should look like. In our view, there is still too much room for manoeuvre.”
“We welcome the fact that the criteria which defines entities which are ‘small’ – and so exempt from the changes – has now been more clearly defined. However, there is no statutory obligation on the client to notify the parties in the chain that they are small and commercially this will be problematic.”
Tania Bowers, Legal Counsel at APSCo, added:
“The recent case of radio presenter, Paul Hawksbee, who successfully challenged a deemed tax bill of around £140,000 in an IR35 tribunal, is the latest in a long line of stories which indicate that HMRC has little grasp of its own rules. The ambiguity within the latest legislation will do little to ease this sentiment. However, APSCo and its members will, of course, continue to work with clients and contractors to educate them on the changes, and to offer guidance on the many grey areas.”