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The Ben/Jo case study and IR35

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    The Ben/Jo case study and IR35

    The IR35 discussion document has two case studies. The one that is probably closest to most CUK people is the Ben/Jo study. We're in general agreement that this case study is deeply flawed, but it would be good to work through exactly which points should be raised with HMRC.

    The description:
    Case study 1:
    A legal company hires two lawyers in 2015-16 who do the same job and work on the same cases.
    The company pays the lawyers gross payments of £70,000 per year.
    Jo works as a direct employee. The company deducts income tax and employee NICs from her salary and pays
    employer NICs on top. The total tax and NICs paid on Jo’s salary is £30,612 (£22,071 by Jo and £8,541 by the
    company).
    Ben works through a PSC and does not operate IR35. He pays himself the most tax advantageous remuneration
    strategy combining a low salary and dividends. His total tax and NICs liability is £16,900.
    There are multiple issues, but we'll start with just clarifying how they arrived at the numbers. They are clearly using 2015-2016 thresholds and rates, even though they are proposing changes for future years.

    They assume no pension contribution, no expenses. Jo's taxes, in the example, are based on PAYE on £70K. (I got a difference of £3, not sure what is up with that, but it doesn't matter).

    Ben's taxes. They appear to be using a salary of £10,600, with Ben's Ltd co neglecting to claim the employment allowance.

    THE DIVIDEND TAX
    In a classic example of the failure to have joined up thinking, this example was apparently prepared by someone who didn't know about the dividend tax changes. So the first, glaring point is that the dividend tax has already dramatically reduced the disparity between Ben and Jo, even if all other things were equal.

    In 2016-2017, Jo will pay £21,976. In 2016-2017, using a salary of £11K and no employment allowance (no longer allowed), Ben and his Co will pay £19,516. Ben's take-home pay is only £2460 better than Jo's, despite the fact he has no employment rights (and the other things we'll cover here).

    IF BEN WERE IR35-CAUGHT
    If Ben were IR35 caught in 2016-2017, he would be allowed £3500 of expenses, but let's just assume he doesn't have any at all, so that is take home pay for him. Ben and his company will pay £25078 in taxes, which means Ben's take home pay will be more than £3000 LESS than Jo's, even though they do "the same job and work on the same cases." So Ben gets less take home, and has no employment rights, benefits, etc.

    If HMRC drags Ben into IR35, they are shafting him badly, even if all other things were equal.

    JO IS PAID MORE THAN BEN
    Jo's employer pays employer NI for her, but leaves the responsibility for Ben's employer NI to his company. That means Jo has a benefit of £8,541 paid on her behalf at no cost or tax to herself. This does mean more revenue for HMG, but it also means the comparison between Jo and Ben, and the amount of tax they pay, is deeply flawed. Ben and Jo are not equally compensated.

    HMG SUBSIDISES JO MUCH MORE THAN BEN
    Jo's maternity pay is subsidised at a high level by HMG. Since Ben's salary is low, any corresponding subsidy would be very low.

    PENSION AUTO-ENROLMENT
    Last time I checked, this was not optional, but it is left out of the calculations here.

    If auto-enrolment is functioning, Jo will have a minimum of £2,100 paid into her pension by the employer. For Ben to have the same pension provision, he will have to pay £2,100 out of his gross £70K.

    [Jo will also have £3500 of her £70K paid into her pension. If Ben pays £3500 of his £70K into his pension, the tax impact of the £3500 pension contribution is roughly equal between the two of them. Jo's will reduce employer NI (13.8%), employee NI (2%), and income tax (40%). Ben's will reduce corporation tax (20%) and higher rate dividend tax (32.5%). Jo gets slightly more tax benefit from the dividend contribution, but it isn't significant.]

    EMPLOYMENT RISK
    Jo's employer gives her employment rights. Ben has none, and is not compensated for the difference. The monetary value of these rights may be debated, but they are important. This is something of value which Jo is receiving and Ben is not, so it hardly seems inequitable to have Jo pay some amount of higher tax than Ben.

    Jo does not have to set aside funds for times when she is out of contract. Ben does. Again, the cost of this is hard to quantify, but it is important. Just because two people are doing the same work on the same cases and being given the same amount of pounds does not mean their situation is the same. Jo is being given security as well as the monetary compensation. It is not equitable for them to pay the same tax.

    The case study doesn't match the reality that there will be periods where Ben's services are not needed, and the engager will not provide work for him and pay him for those times.

    CONTINUING PROFESSIONAL DEVELOPMENT
    This is required by the Solicitors Regulation Authority to stay on the register and continue in practice. CPD points can be acquired by doing quizzes in journals. Jo's employer will subscribe for her. Ben's will be paid by his company, but that still has to come out of the £70K. A one year subscription to the New Law Journal is £348. They can also attend conferences for CPD, which Jo's employer will cover, perhaps in excess of £1000.

    OTHER DIFFERENCES
    Jo's employer will purchase her professional indemnity insurance. Ben's will have to be purchased out of his £70K. Jo's employer probably provides a computer for her. Ben very possibly has to pay for his own laptop, including maintenance, software, and upgrades, out of his £70K, spending on average perhaps £400 a year or more.

    Jo's employer can provide the following, tax free, in addition to her salary, while Ben, if he wishes any of them, must pay for them out of his £70K: relevant life plan, mobile phone, registration with the Information Commission, access to company canteen, hosting client entertainment (football matches, etc), business cards, health screening/medical checkup, childcare vouchers, training, etc.

    COST OF LTD CO
    Ben has to pay accountancy fees, and other costs associated with his limited company, such as stationery, website, etc. This all comes out of his £70K.

    VAT
    Ben's company does not have enough turnover to hit the VAT threshold. He can still register for VAT, of course, and recover the VAT on the expenses above -- but he will have higher accountancy fees if he does, and the VAT he would recover may not be enough to justify the time and expense. Alternatively, he can just pay the VAT on all those expenses.

    Jo's employer will recover the VAT they spend in providing all those benefits to Jo. VAT differences were left out of the case study.

    CONCLUDING
    The differences are so significant that it is hardly inequitable if Ben takes home £2500 more than Jo. If he purchases the same pension provision that Jo receives, the difference in their take-home pay becomes nil, without even considering the other benefits Jo has that he does not have. It would be a gross injustice if Ben, under IR35, were to take home £3000 LESS than Jo, given all the other benefits she receives.

    so....

    Soliciting corrections, additions, etc.
    Last edited by WordIsBond; 31 August 2015, 17:43. Reason: adopting corrections / improvements

    #2
    just to play some devils advocate:

    HMG SUBSIDISES JO AND NOT BEN
    1. Ben does not get statutory sick pay, Jo does.
    2. Ben does not get statutory maternity/paternity pay, Jo does.

    HMG don't pay SSP, Jo's employer does (and can't claim it back) - (https://www.gov.uk/employers-sick-pa...-with-sick-pay)

    Ben (if he were female) gets the same statutory maternity pay as Jo for all but the first six weeks (as an employee of HisCo) and HisCo can claim back 92% of that amount, so to say he gets none is incorrect (https://www.gov.uk/employers-materni...-statutory-pay)

    Comment


      #3
      Agree with a lot of that, although not so much the IR35-caught scenario. The point of IR35 is to tax at a rate that is "broadly consistent" with employment, so the argument here is a non-starter w/ HMRC (regardless of the merits either way). This goes to the heart of how you regard Employer's NI and who you believe pays, ultimately. Completely agree w/ the point on dividend taxation, that is a schoolboy error.

      Comment


        #4
        Thanks for that, I didn't actually know the SSP rules changed.

        Re: maternity pay, it is based on salary. The whole point of the comparison is that Ben is paid a very small salary, which means maternity pay for the first six weeks will be negligible for the contractor and 90% of normal pay for Jo.

        So we'll drop the SSP part of the comparison, but the maternity comparison still stands, I believe. The employee gets a significant state-funded maternity pay, the contractor doesn't.

        Comment


          #5
          Originally posted by jamesbrown View Post
          Agree with a lot of that, although not so much the IR35-caught scenario. The point of IR35 is to tax at a rate that is "broadly consistent" with employment, so the argument here is a non-starter w/ HMRC (regardless of the merits either way). This goes to the heart of how you regard Employer's NI and who you believe pays, ultimately. Completely agree w/ the point on dividend taxation, that is a schoolboy error.
          HMRC are trying to make the case that IR35 is "fair" in this case by constructing this scenario of two people being paid the same amount for the same job. Well, what they want in this scenario isn't "fair" either. Ben gets the shaft. If they refuse to acknowledge that, then our MPs need to hear about it, and perhaps take our case to the media as well.

          Comment


            #6
            Originally posted by WordIsBond View Post
            Thanks for that, I didn't actually know the SSP rules changed.

            Re: maternity pay, it is based on salary. The whole point of the comparison is that Ben is paid a very small salary, which means maternity pay for the first six weeks will be negligible for the contractor and 90% of normal pay for Jo.

            So we'll drop the SSP part of the comparison, but the maternity comparison still stands, I believe. The employee gets a significant state-funded maternity pay, the contractor doesn't.
            agree - just don't want you saying "he gets none" - should be "he gets significantly less" (or words to that effect)

            Comment


              #7
              Originally posted by pr1 View Post
              agree - just don't want you saying "he gets none" - should be "he gets significantly less" (or words to that effect)
              Fair enough.

              Comment


                #8
                Originally posted by WordIsBond View Post
                HMRC are trying to make the case that IR35 is "fair" in this case by constructing this scenario of two people being paid the same amount for the same job. Well, what they want in this scenario isn't "fair" either. Ben gets the shaft. If they refuse to acknowledge that, then our MPs need to hear about it, and perhaps take our case to the media as well.
                Sure, but there's an element of psychology about this. If you argue a position that has been made, and pushed back against, countless times before, it has the potential to dilute the other, very legitimate, points that are being made. Otherwise, we can continue arguing against the fundamental premise of IR35, which we know that HMRC and HMG both view as necessary. My 2p.

                ps. and thanks for doing this; I like it

                Comment


                  #9
                  Also, there's associated costs with running a LtdCo - accountancy fees etc

                  Comment


                    #10
                    Originally posted by jamesbrown View Post
                    Sure, but there's an element of psychology about this. If you argue a position that has been made, and pushed back against, countless times before, it has the potential to dilute the other, very legitimate, points that are being made. Otherwise, we can continue arguing against the fundamental premise of IR35, which we know that HMRC and HMG both view as necessary. My 2p.
                    I suppose you've got a point there. Still seems legit, if they are saying, "This isn't fair," to say, "Yeah, but your solution isn't fair, either."

                    Of course, the real villain in the plot is employer NI. That's the part that makes Ben significantly worse off than Jo under IR35. So what this is really illustrating is the injustice of making the worker, rather than the engager, liable for employer NI under IR35. And this illustration, and pointing out that "inside" makes Ben worse off, and "outside" makes Jo arguably worse off, highlights that. The big issue here is not really Ben and Jo's tax, especially after the dividend tax hit. The big issue is the £8.5K that the engager is dodging.

                    So comparing the two scenarios may be useful for making the case that the best solution here is to hold the engager liable for employers NI under IR35.
                    Originally posted by jamesbrown View Post
                    ps. and thanks for doing this; I like it
                    Well, there are so many interrelated issues, seemed like it would be good to try to isolate some of them. I'm assuming eek or IPSE (if they want to be bothered to read here) or someone will want to say something about the Ben/Jo thing, so I thought I'd do some of the work and draft in the community for further input, so that they can pretty much just take what we come up with. Sharing the load and all that.

                    Comment

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