Umbrella Companies Dilemma
The Chancellor Osborne’s Autumn Statement and 2016 Finance Bill has caused a huge umbrella companies dilemma.
The Chancellor has said that all Umbrella Company contractors will be deemed to be under the Supervision, Control and Direction of their clients – unless it can be proved otherwise.
This would mean that they are no longer able to offset travel and subsistence expenses against tax.
As this is the main expense that umbrella companies can claim for their contractors, it means that their contractors are going to take a huge hit in their pockets.
Umbrella Companies will have to tell contractors this before April and before they notice a huge chunk mission from the money returned to them.
Leaving Umbrella Companies or Staying
It will also mean that many of those contractors will have a decision to make, whether to stay with their brolly or to take themselves out of IR35 and use a personal service company.
Some contractors will stay and some will go.
They have to pay upwards of £100 a month to umbrella companies, basically just to pay them.
This was offset by what they would save on an Accountant and even more by what the umbrella company could offset in taxes for them.
What they gained was more than they paid out to the umbrella company.
So, it was worthwhile for them to stay in the umbrella company rather than pay the IR35 tax.
Autumn Statement and Finance Bill
However, that situation has now changed after the Autumn Statement and Finance Bill 2016.
The main expense they could offset against tax was the travel and subsistence expenses.
That will be gone from April 2016.
So, many umbrella company contractors will now be paying the umbrella companies more than they are saving in tax.
The contractors will have a decision to make and so do the umbrella companies.
Changing the Contract for SDC
However, the brollies will now have a dilemma.
Should the umbrella companies try to take contractors outside the Supervision, Direction and Control of clients?
In terms of the contract this should not be too hard to do.
The contract would say that for any task, or piece of work, the client would have to agree this with the contractor.
They would have to agree the estimate too.
Employers tell permanent workers what to do and how long it should take. Suppliers, with a contract for services, would agree with their customer what should be delivered and when.
Changing Contractors Working Practices
As I said, it would be easy enough to change contracts to reflect this. After all, umbrella companies normally have a cosy relationship with agencies who supply them with contractors.
Providing the client is reasonable, and most are, they would be happy to change the contractor’s working practice to match the contract.
Both parties would agree the piece of work, as would the estimate. The contractor would complete the task unsupervised, using his, or her, own knowledge and experience.
Of course, they are taking a bit of a risk. If they got it wrong they could get hit for the missing tax.
However, theres is no reason to get it wrong,
It’s fairly simple. The contract HAS changed. The relationship between the contractor and the client HAS changed to a customer / supplier relationship in terms of agreeing what has to be delivered and the time it should take.
So, it is not fraudulent. It is just a fact – a change way of working.
Umbrella Company Options and Choice
So, here’s the umbrella companies dilemma.
Here is their Catch-22.
If they do help the contractor to be unsupervised, working without direction and uncontrolled by the client, this would get the contractor his travel and subsistence expenses back again.
That might save him, or her, £5,000 a year.
It might make it more worthwhile to stay with the umbrella company.
Contractor Now Outside IR35
However, it would also take him, or her, closer to being outside of IR35.
This would mean that he, or she, could now work through a personal service company.
Personal service company contractors pay an average of £10,000 a year less in tax than an umbrella company contractor.
There are three main IR35 factors which point to you being caught by IR35 or outside it.
Major IR35 Factors
1 Supervision, Direction and Control
2 The Right of Substitution
3 Mutuality of Obligation
Right of Substitution Contract Clause
We know, from a previous court case, that you can easily insert the right of substitution into your contract and a named substitute and that the burden of proof is with HMRC to prove that it was a sham.
They could only do that if the client triggered the substitute clause and the substitute failed to show up. That court verdict must have had HMRC gnashing their teeth.
So, of the three main pointers to IR35, putting a right of substitution clause that will never be triggered into your contract would allow you to tick that box.
The umbrella company has just helped the contractor to be outside the Supervision, Direction and Control IR35 factor.
So, the contractor is able to tick off two of the three main IR35 boxes.
Keeping More of a Contractor’s Income
He, or she, would naturally think “Maybe I can get outside IR35 and set up a personal service company so that I could save not just the £5,000 for travel and subsistence but also another £10,000 a year on top of that”.
So, that is the umbrella companies dilemma.
Should they arrange with the agencies and clients to change the contracts fo some of their contractors to take them outside the Supervision, Direction and Control clause?
This would mean that they could still claim their travel and subsistence expenses which might come to more than the monthly fee that the contractor pays to the umbrella company?
Big Question for Contractor Umbrella Companies
The big question for them is this:-
Will getting contractors outside Supervision, Direction and Control of the client be more likely to get umbrella companies contractors to stay with them or be more likely to show them how it is done and make it easier for them to leave the umbrella and set up a personal service company.
That’s the 64 million dollar question for umbrella companies.
They are going to have to decide, before April, whether they are going to open that box or keep it shut.
They are going to have to decide whether to twist or stick.
That is the umbrella companies dilemma and they need an answer to it well before April.
So, what will they do?
I’m absolutely certain which option they will take – but that is for another article.
Umbrella Company Alternatives