Will new IR35 rules cause me problems with HMRC?

I am between jobs, getting married in December and looking to start a new permanent position in January. I would like the security of a full-time contract, but most of the companies I have spoken to are looking for contractors, which would require me to establish a limited company. I am concerned about the tax implications. Are changes to the IR35 rules on off-payroll working going to cause me future issues with HM Revenue & Customs?

John Chaplin, employment tax partner at accountancy and business advisory firm BDO, says recent research by BDO suggests that 81 per cent of medium-sized businesses will increase their use of contractors over the next 12 months, reflecting your experience.

You’ve mentioned IR35 so I assume you’re concerned about your employment status and the obligation for your personal service company (PSC) to operate PAYE and national insurance contributions (NICs). The implications will depend on who your clients will be.

Since April 6 2021, medium and large private sector businesses with a UK presence using the services of contractors engaged via PSCs are responsible for assessing the employment status of the contractors for income tax purposes and issuing a statement setting out their conclusions (called a status determination statement).

If HMRC concludes you are “inside IR35”, PAYE and NICs will be deducted from your fees before they are paid into your PSC. Conversely, if they determine you are “outside IR35” your company will be paid gross.

The good news is that you do not need to assess your own status and you will be able to appeal against HMRC’s assessment if you disagree with its conclusion. If your client has incorrectly assessed you as outside IR35 or PAYE/NICs have not been correctly operated, HMRC should not seek any underpayments from you. Your client (or an entity which pays you, as this may be different) will bear the risk of the PAYE/NICs, interest and penalties.

If your clients will be small companies in the private sector, the rules remain the same as they were before April 6 2021: the obligation to assess your employment status and operate PAYE/NICs under IR35 will rest with you. You will need to consider employment status tests such as where, when and how you will provide your services, the financial risk you bear and whether you must undertake the work personally.

Your client will need to confirm to you that they are small, but our research has also indicated that many businesses in the private sector have not updated their internal processes to deal with the changes to IR35 — so make sure that you retain any confirmation. Aside from the IR35 implications, you will also need to consider other taxes and the administrative obligations that come with setting up a company and budget for the time and cost involved.

Additional information provided from BDO’s bimonthly Rethinking Tax survey of over 500 medium-sized businesses.

Can my grandmother release equity in a shared house?

My 89-year-old grandmother inherited half of the house she lives in when her parents passed away 50 years ago. In their wills they gave her the life-long right to occupy the house. The other half is owned by her brother, who does not live in the house, and with whom she has a difficult relationship.

Since my grandfather died last year, she lives alone, with a carer visiting seven days a week. This is expensive and she is constantly worried that her money will run out, forcing her to sell her home. She has very little capital or income, but the value of the house is likely to be about £1.2m. 

Is there any way for her to release her 50 per cent share of the equity in the house without a sale, so that she can continue to live in her home and still afford the care she needs? Would a bank or other financial institution take a charge over her home in exchange for funds now and be prepared to wait until she dies to realise their profit?

Paul Hewitt, a partner in the estate and inheritance disputes team at Withers, says the cost of care means your grandmother is becoming cash poor, but has equity in her home. The conventional mortgage market can’t help as she won’t meet their affordability criteria. Whether she can release value from the equity without having to sell is a commercial decision for a lender.

The equity release industry allows (usually elderly) people to unlock cash from the value of their home. When they die or move permanently into care, the lender recoups its money through sale. The benefit — immediate cash — is obvious. Downsides include the roll-up of interest and, if moving, the new property has to meet the lender’s criteria. The asset stays in the estate and once the rolled up mortgage is paid off any balance remains for the benefit of the estate.

The complicating factor is the brother’s entitlement to half the equity. You say the brother isn’t living there. Generally, the equity release market will only lend to owner-occupiers. So the only way to get money out of the property is for the brother to come off the title. His position could be covered by an agreement but he would come behind the lender.

The positive aspect is that your grandmother has the right to occupy the house, which means that no matter how difficult her relationship with her brother, he can’t force a sale without her consent. In terms of practical suggestions, perhaps the younger generation can negotiate a deal between the two of them?

Alternatively your grandmother needs to find a company who will lend, but it will be very difficult if her brother won’t agree to a charge over the property (to protect the lender’s security) as you can’t get a legal charge over part of a home.

Normally I would recommend speaking to a specialist broker such as Paula Steele of John Lamb Hill Oldridge. She sees similar situations with properties held wholly or partly in trust where a banker might be willing to do something, but it is likely to need to be on a property worth more.

One last thought is to inquire whether your grandmother is entitled to any deferred payment scheme. Local authorities will pay care costs (but usually only for care homes) secured against the property. Again, her brother would need to co-operate.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.