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In this brief guide, we look at the pros and cons of letting out residential property in the UK (including furnished holiday accommodation) for the tax year beginning 6 April 2021. We do not cover the letting of commercial property in this guide, but we are happy to advise on that area of investment on an individual basis.
Different taxes apply to the purchasers of property in different parts of the UK: Stamp Duty Land Tax (SDLT) in England and Northern Ireland, Land and Buildings Transaction Tax (LBTT) in Scotland and Land Transaction Tax (LTT) in Wales. Each tax has its own thresholds and rate bands.
The SDLT nil rate threshold, which is normally £125,000, has been temporarily increased to £500,000 until 30 June 2021, after which it is due to drop to £250,000 until 30 September 2021, when it will revert back to its normal level. For LTT, the nil rate band is £250,000 until 30 June 2021, after which it reverts back to £180,000. The LBTT nil rate band is £145,000.
If you buy a second home for £40,000 or more, which is not a replacement for your main home, you must pay a land tax supplement on the entire purchase price. For SDLT and LTT this is an extra 3% and for LBTT it is an extra 4%.
For example, if in July 2021 you buy your main home in England for £400,000, you will pay paid SDLT of £7,500, but if you buy the property as a second home or to let, the total SDLT charge will be £19,500.
If you buy your residential properties through a company (see ‘How to hold your property’ below), that company must pay the 3% or 4% land tax supplement on all purchases of over £40,000. Where the residential property is acquired in England or Northern Ireland for more than £500,000, the company may have to pay SDLT at 15% if it does not intend to use the property for a commercial or charitable purpose. In addition, where a company holds a residential property located anywhere in the UK, which is not commercially let to an unconnected tenant or acquired for development, it may have to pay the Annual Tax on Enveloped Dwellings (ATED). This annual charge starts at £3,700 for 2020/21 and applies to properties acquired for more than £500,000, or which were valued above that level on 1 April 2017. Higher value residences can attract significantly higher charges.
From 1 April 2021, any non-resident buying UK residential property in England or Northern Ireland will normally have to pay a further 2% SDLT supplement. There are different definitions of non-residence for SDLT purposes compared to normal statutory rules, so it is possible for an individual or company that is otherwise UK resident to be subject to the supplement.
As an individual landlord you must pay income tax on your ‘property income’. This is the sum of the rents you receive less the tax-deductible costs (see ‘Tax- allowable expenditure’). Property income does not include the profit you make when you sell the property and it doesn’t take into account any costs of buying, selling or improving the property.
All of the income you receive from letting property in the UK, both residential and commercial, is combined and taxed as one property investment business. A loss on one property can be relieved against profits made from another in the same tax year or in later years. Overseas property and furnished holiday lets are treated as separate businesses.
If you hold the let properties in your own name, you will be taxed on the income and gains arising from those properties. You can’t transfer the income before tax to another person without first transferring an interest in the property to that person.
You should declare all the income and expenses from your let properties in the property income section of your self- assessment tax return. If you make a loss from the letting, you need to declare that loss on your tax return so that it can be deducted from the profits you make from letting in a later period.
If you let properties which are situated overseas, the income and expenses from those properties must be shown on the foreign income section of your tax return. Profits or losses from overseas properties need to be calculated separately from those arising from UK properties.
Where a let property is held in the joint names of a married couple or civil partners, it can provide a useful income stream if one of the couple has little or no other income.
In England and Wales you can own a property as ‘joint tenants’ (where both owners hold an equal interest in the whole property) or as ‘tenants in common’ (where each owner holds a separate and identifiable share, say 10% and 90% of the property). There are different rules for properties located in other countries, including Scotland.
When a legally joined couple (married or civil partners) own property as joint tenants, any income from that property must be split equally between them for tax purposes and declared as such on each person’s tax return.
If the same couple hold the property as tenants in common in unequal shares, they can make a declaration on HMRC’s Form 17 to have the property income taxed in the proportion that reflects each partner’s beneficial interest in the property. Without the Form 17 declaration, the couple will each be taxed on an equal share of the income from the property. The Form 17 election is irreversible, so once you have elected to be taxed on your actual share, the election will remain in place unless your beneficial interest in the property changes.
Where the joint owners of a property are not married or in a civil partnership, they can agree to share the income from the property in whatever ratio they choose, although this profit- sharing ratio would normally reflect the underlying beneficial ownership of the property.
If you want to split the property income in unequal shares, instruct your solicitor to acquire the property as tenants in common in the ratio of ownership desired. Where you already own the property as joint tenants, it is quite simple to change to a tenancy in common, but there can be a land tax charge where the property is mortgaged.
When the property is sold, any capital gain arising must be split according to the beneficial ownership of each owner.
A limited company pays tax at 19% on its income and capital gains, although from April 2023 this rate is due to increase to 26.5% or 25%, when profits exceed £50,000 and £250,000 respectively. In contrast, most individuals pay tax on rental income at rates between 20% and 45% (19% and 46% in Scotland). Individuals also pay Capital Gains Tax (CGT) on residential property gains at 18% or 28%.
Also, unlike individuals, companies do not suffer a restriction on the deduction of interest and finance charges (see ‘Interest paid’).
However, there may be further significant tax and National Insurance charges when you extract funds from your company.
If you already own a company which holds surplus funds, investing in buy-to-let property can make commercial sense, provided the company can secure a mortgage for the balance of the purchase price. However, where the trade may become overshadowed by the value of the properties it holds,
it may no longer be classified as a ‘trading’ company, which would mean it is no longer eligible for a number of tax reliefs, including business asset disposal relief (formally known as entrepreneurs’ relief).
Once you have acquired your first property and it is available for letting, you need to start identifying the costs that are deductible from the rental income (see ‘Tax-allowable expenditure’).
“Available for letting” means the property is in a condition where it can be let, subject to cleaning, furnishing and drawing up letting agreements. If the property is in such a poor state that it cannot be let, it can’t be treated as part of your property letting business. The expenses connected with renovating a property to bring it up to the standard to meet that “available for letting” condition aren’t deductible from your rental income but may be deductible when you sell the property (see ‘Capital costs’ below).
Expenses incurred before the first tenant moves in, such as advertising or minor repairs, can be deducted from the rents you receive in the first tax year if:
the expenses are classified as revenue costs rather than capital and;
the costs are incurred within seven years of the start of the property letting business.
Once your property letting business has started, any later expenditure leading up to the letting of second and subsequent properties is part of your lettings business and can be deducted, as long as it represents revenue expenses.
You need to sort your expenses into categories of ‘capital’ costs connected with buying, selling or improving your properties and other costs that reoccur as the tenants change, known as revenue expenses.
Ask us about costs you have incurred, as they may be deductible. If your tenant is responsible for paying certain costs – such as energy and council tax bills – you can’t claim a deduction for those items.
If your rental income is no more than £150,000, you are expected to account for the income and expenditure from your properties on a ‘cash’ basis. This means deducting allowable revenue expenses paid from the rents you actually receive in the tax year. You can opt out of the cash basis and use normal accruals accounting if you wish. Companies and Limited Liability Partnerships (LLPs) are not permitted to use the cash basis.
From 2020/21, none of the finance charges (such as loan interest and arrangement fees) you pay in respect of your let property are deductible from rental income. This applies if you let residential property as an individual or jointly with other individuals, but companies can deduct all finance costs. There are different rules for furnished holiday lettings (see ‘Holiday lettings’ below).
Where you have disallowed finance costs, you can claim a tax credit to set against your Income Tax bill. The tax credit is equal to 20% of the finance charges you paid in the year, even if you pay a higher rate of tax on your rental income.
Where this tax credit exceeds your tax bill for the year, the excess amount is carried forward and added to any tax credit available for finance costs in the following years.
If you have significant loans connected to your let property business, your taxable profits will be much higher than your actual accounting profits. This could have knock-on effects for other taxes and charges you have to pay.
Any capital costs, such as improvements, can only be deducted from the sale proceeds of the property. You need to keep track of which capital expenses relate to which let property and retain all the relevant receipts and contracts.
You can deduct the actual cost of replacing furnishings used in your let property. This covers the cost of replacing items such as carpets, curtains and free-standing white goods, but not the initial cost of those items.
The cost of replacing items that are fixed to the property should be claimed as repairs.
The cost of repairs is always deductible from rental income, but the cost of improving a property is a capital cost that is not immediately deductible (see Capital costs). The difference between a repair and an improvement is that a repair restores what was originally there without adding new functionality – everything else is a capital improvement.
You can’t apportion the cost of a project between improvement and repairs. If the work done will fall into both headings, ask the builder to quote and bill for each piece of work separately.
You must keep adequate records to enable you to report your profits or losses accurately to HMRC, without recourse to estimates. You should retain a record of every relevant expense. HMRC accept scanned copies of documents.
Deposits will relate to individual tenancies, so record when each tenancy commenced and finished and how much of any deposit was retained or returned.
Note down details of any personal assets you use for the letting business, such as the date and distance of car journeys, or the time spent on administration at your own home.
All the records relating to your property business must be kept for at least five years after the submission date for the tax return in which you reported that the property was let or sold, in case HMRC ask about those figures. Documents relating to the tax year to 5 April 2022 should be retained until 31 January 2028.
If you let your furnished property for a large number of short periods, it could qualify as a Furnished Holiday Letting (FHL). The property doesn’t have to be in a holiday centre;
it can be situated in any part of the UK or even in another European Economic Area (EEA) country. Following Brexit, the Government may seek to restrict FHLs to UK properties only, but nothing has yet been announced on this.
Qualifying as a FHL allows you to deduct interest and finance charges fully from the rental income and claim capital allowances for many items used inside and outside the property.
Also, when you sell the property, it may be possible to defer CGT due on gains by buying another business asset. If other conditions apply, business asset disposal relief can reduce the rate of CGT to 10% when you close your FHL business. Note, however, that FHLs do not normally qualify for any Inheritance Tax reliefs.
The property must be let for short periods, of no more than 31 days each, on a commercial basis to the general public (not just to family and friends). These short lets must total at least 105 days in the year and the property must be available for short-term lets for at least 210 days in the year. For the remaining five months of the year it can be let for longer periods.
The 105-day total can be averaged over a number of properties and a two-year ‘period of grace’ can be claimed on an individual property where the 105-day condition is not met in a particular year, if the other conditions apply. The latter may prove particularly useful where owners have been unable to let their property much due to the pandemic.
The profits and losses for an FHL business are calculated in a similar way to those for an ordinary lettings business, but losses can only be set against other FHL profits.
Your total costs for a FHL property may be higher, as the turnover of tenants is more frequent. However, you can claim for the initial purchase of items such as a fridge in an FHL property, usually in the year of purchase.
If your annual turnover is over £85,000, you will have to register for VAT, as holiday lettings are subject to the standard rate of VAT (20%), whereas normal residential letting is exempt from VAT. As a VAT-registered business, you will have to submit VAT returns using accounting software and keep all your VAT records in a digital format.
Your property letting business finishes when you no longer have any properties available for rent and are not looking for tenants. This may be because you have decided to occupy the last property yourself, or you are keeping the property empty prior to sale.
You can’t deduct any revenue expenses which are incurred after the last property has been withdrawn from the lettings market. Thus, the costs of sprucing-up the property post-letting but pre-sale are not tax-deductible.
When you sell your let property, you would expect to make a profit, after deducting allowable costs (see below). Gains made from selling residential property, which are not covered by an exemption or other relief, are subject to CGT at 28%, except to the extent that the seller has basic rate band available, when the rate is 18%.
The gain must be reported to HMRC online within 30 days of the completion of the sale. We can do this report for you, but we need to know all the details of the transaction as soon as the sale is completed. Penalties will apply if this 30-day deadline is missed.
You must also pay your best estimate of the CGT due on the disposal within 30 days of the completion date.
If all the capital gains you make in the tax year (not just from property disposals) exceed your annual capital gains exemption (£12,300 for 2021/22), you must declare those gains on the CGT section of your tax return. This applies even where you have already reported the gain online to HMRC within 30 days of the completion date.
If you give away the property to someone other than your spouse/civil partner, or sell it to someone connected to you at a discount, that disposal is treated as a sale at market value for tax purposes.
When you live in a property, the gains made relevant to your period of occupation are exempt from CGT on disposal of the property. Other periods you spend away from the property may qualify as deemed periods of occupation if you return to live there at a later date – the detailed rules on this are very complicated! The gain relating to the last nine months of your ownership is also exempt from CGT if you have previously lived in the property.
If you live in more than one home concurrently, you can nominate which property is to be treated as your ‘main home’ and thus exempt from CGT. You can change that nomination at will, but you must make the first nomination within two years of the date on which you started to use the second property as your home. A husband and wife, or civil partners, can only have one CGT-free main home between them.
If you live outside the UK and let property located in the UK, your letting agent (or tenant where there is no agent) should deduct 20% tax from the rents before paying you. However, where HMRC agrees that you qualify under the non-resident landlord scheme, you can receive the rental income without tax deducted. You have to promise to declare the income from your let properties on a UK tax return and pay any tax due on the profits.
Gains arising from the disposal of UK property are subject to CGT in the UK, even where the landlord lives in another country. The gain must be reported to HMRC and the tax paid, within 30 days of the completion date, as described above.
However, non-resident landlords must also report disposals where there is no tax to pay or a loss is incurred.
The value of all your possessions, including the home you live in and your buy-to-let properties, are all potentially subject to Inheritance Tax (IHT) on your death. However, the first £325,000 (“nil rate band”) is effectively exempt from IHT, and any unused nil rate band may be inherited by your spouse or civil partner. There is an additional residential nil rate band of £175,000 per person that can be deducted if you leave the value of a home to one or more of your direct descendants, but this is not available if the property has always been rented out. Any unused amount is also transferrable to a spouse or civil partner.
There are exemptions for gifts made more than seven years before you die and amounts left to your spouse/civil partner or to charities.
It is essential to have a well-drafted and up-to-date Will to take full advantage of IHT exemptions and reliefs.
This report is written for the benefit of our clients and is based on information available in May 2021. Further advice should be obtained before any action is taken.
The Coronavirus Job Retention Scheme (CJRS) for furloughed workers has been extended until 30 September 2021. Currently, the worker must receive a minimum of 80% of ‘normal’ pay for their furloughed hours and this will continue through to September.
Until 30 June 2021, the position of the employer will be unchanged, namely: They can claim a CJRS grant to cover 80% of normal pay; but:
They must pay the employer National Insurance Contributions (NIC) plus minimum auto enrolment pension contributions on the salary actually paid to the worker, with no grant to cover these amounts.
From July, the cost of furloughing the worker will increase, as the grant will only cover 70% of normal pay, reducing to 60% for August and September.
An employee must not work for the company at all during the hours for which they are furloughed, but this can be as many or as few hours a week as are agreed between the worker and employer. An exception is a furloughed director, who is allowed to carry out any statutory work related to their directorship (e.g. preparation of accounts).
The eligibility for the scheme is being amended from 1 May 2021 to include employees who were employed on 2 March 2021, as long as a payment of earnings was reported through RTI between 31 October 2020 and 2 March 2021.
There are three possible reference dates for determining furlough pay, which depend on when the employee first had earnings reported on a Full Payment Statement (FPS) through Real-Time Information (RTI).
Grant claim deadlines will continue to be 14 days after the month-end although, as currently, most employers will want to make the claims in advance of payrolls being run.
There are to be two further grants available under the Self-employed Income Support Scheme (SEISS), both based on three months’ worth of previously reported profits.
The 4th grant (SEISS-4), covering February to April 2021, will be 80% of profits, up to a maximum of £7,500. HMRC will contact potentially eligible taxpayers in mid-April and applications will be open from late April until the end of May 2021.
The SEISS-5 grant covers May to September 2021 but is still based on three months of profits. Claims can be made from late July, but note that this grant will work differently to the others:
Taxpayers who started a business in 2019/20 were not eligible for the first three grants but will be able to claim the 4th and 5th grants if they meet the revised qualifying conditions, including having filed a 2019/20 tax return by 2 March 2021. However, many people are still ineligible for these grants, including traders whose profits were previously over £50,000 and taxpayers who have less than 50% of total reported income from self employment.
Various points on the new SEISS grants still need to be clarified by HMRC but it has been confirmed that any grant received will be taxable in the tax year of receipt, irrespective of the business’s accounting period.
To try to combat fraud, HMRC has been writing to newly eligible taxpayers, asking them to complete pre-verification checks to confirm evidence of trade. The letters notify them that HMRC will phone them within 10 working days. On the call, HMRC will ask the taxpayer to confirm their email address and agree to receive a link to a secure Dropbox. They will then have two days to upload one form of identity and three months of bank statements to demonstrate their business activity, before the link expires.
HMRC has confirmed it will make three attempts to phone, so taxpayers who receive the letter should check that HMRC holds the correct telephone number for them. If the number needs to be updated, they must contact 0800 024 1222 (a line only to be used for updating telephone numbers). If HMRC is unsuccessful in reaching the taxpayer, it will write a further letter. Taxpayers who receive the letter but do not complete the checks cannot claim a grant.
In the Budget, the Chancellor announced a new ‘Recovery Loan Scheme’. This will provide lenders with a Government guarantee of 80% on eligible loans between £25,000 and £10 million
This scheme is now open to all businesses, including those who have already received support under the existing COVID-19 loan schemes.
Business rates relief and ‘re-start grants’ Eligible retail, hospitality, leisure and nursery properties in England enjoyed 100% business rates relief in 2020/21.
This has been extended to 30 June 2021, after which there will be a further 66% relief for the period to 31 March 2022 (subject to conditions and limits).
Re-start grants have been announced, as follows:
The Government is also providing £425 million to local authorities to use for discretionary grants to businesses.
The devolved authorities have their own measures to provide similar support.
The Government is aware that there have been a significant number of fraudulent claims under the various support measures (e.g. employers claiming furlough grants for hours when employees are still working or traders claiming SEISS grants when their business has been unaffected by coronavirus). HMRC may soon be on to the culprits, as it has been allocated £100m for a ‘taxpayer protection taskforce’ of 1,265 HMRC staff to combat fraud within COVID-19 support packages. Early disclosure of such matters to HMRC can reduce significantly, or even eliminate, any penalties that might otherwise arise.
HMRC actively looks for businesses that have an annual turnover of £85,000 or more, as most should be VAT-registered.
It gathers information from many different sources, including credit card payments and sales by wholesalers, then analyses that data and compares it to turnover figures declared on tax returns.
This data has allowed HMRC to find businesses that are not VAT-registered, but where the turnover indicates they should be. HMRC has been writing to those businesses, asking them to register for VAT or to say why they don’t think they need to be registered.
If you receive one of these letters, you need to respond without delay, as HMRC will follow the letter up with further tax enquires. Please forward a copy of the letter to us as soon as possible, so we can advise you on the approach to take. HMRC’s information about your business may not be completely correct.
The 5% VAT rate for hospitality has been extended until 30 September 2021. On 1 October 2021 it will increase to 12.5%, before reverting to the normal 20% rate from 1 April 2022.
The following are eligible for these reduced rates:
Note that alcoholic drinks remain chargeable at 20% throughout.
If you operate a business where some of your sales are eligible for the reduced rates, you are not obliged to pass on this VAT cut to customers.
This means that you can keep your gross prices the same and use the tax break to increase profit margins if you feel your prices will still be competitive.
Often, when a tax rate is due to go up, there are ‘anti-forestalling’ rules to stop customers benefitting from the reduced rate by paying in advance for facilities that they will enjoy once the rate has gone up. However, HMRC has stated that there are no plans to introduce any anti-forestalling rules before the VAT increases take place.
This means that a customer can, for example, pay for holiday accommodation in September 2021 that will not be used until April 2022, but only pay 5% VAT.
Dealing with changing VAT rates produces various complications for businesses, including updating tills and making sure VAT returns contain correct figures. If things go wrong it can lead to extra VAT and penalties being due.
Take extra care when reporting company cars on Form P11D over coming weeks. For 2020/21, there were significant changes to the percentages that need to be applied to the list price of a car when calculating a benefit, namely:
For cars purchased from April 2021, there are important changes to the Capital Allowances that businesses claim as a replacement for the depreciation is the accounts:
Where cars are leased rather than bought, the leasing cost in the accounts is generally allowable for tax, subject to a 15% disallowance for high emission cars. For leases entered into from April 2021, many more cars will therefore suffer this disallowance.
If you are unsure how these tax changes affect your business and its employees, please get in touch.
With the economy hit hard by COVID-19, many unincorporated businesses will make losses this year, perhaps for the first time. A sole trader has great flexibility in how losses can be used and these rules also extend to members of partnerships and LLPs, subject to restrictions for non-active partners and limited partners.
For losses incurred in the first four tax years of a new unincorporated business, there is the option to carry back the loss against total income of the three preceding years. This can potentially lead to large repayments of tax previously paid at the higher or top rates, if the business owner was previously in high-earning employment. Otherwise, there is normally only a one-year carry-back available against total income.
However, the Chancellor has introduced a temporary extension to this one-year loss carry-back, such that trade losses can be carried back a further two years, but against trade profits only. This will produce repayments of tax where a currently loss-making business was previously profitable.
This extended carry-back can be used for losses of the tax years 2020/21 and 2021/22. For each year, there is a cap on the amount of loss that can use the extended carry-back, but as this is set at £2m it will not impact most businesses.
There are other options for losses, including setting them against Capital Gains in some circumstances, special rules on cessation of trade and carrying a loss forward against future trading profits. There are lots of detailed rules for each of these options and different dates by which claims must be made.
Unlike an unincorporated business, losses of a company cannot be used against the owner’s personal income or Capital Gains. Instead, they are stuck within the company, unless the company is part of a group, when it may be possible for other group companies to use them instead.
Company trading losses that have been incurred since 1 April 2017 can be carried forward to set against total profits. There is also a one-year carry-back option available, again against total profits.
To help companies generate repayments of tax that and aid their cash flow, the loss carry-back has been temporarily extended to 3 years. Unlike the equivalent rule for unincorporated businesses, the extended carry-back is not restricted to trading profits, which will be useful, for example, where a company has both trading and rental income in earlier years.
The extended loss carry-back applies for accounting periods ending in the 12 months from 1 April 2020 and in the 12 months from 1 April 2021. For each of these accounting periods, the maximum loss that can be subject to the extended carry-back is £2m.
With Corporation Tax rates due to increase significantly for most companies from 1 April 2023, it is important to quantify the possible tax savings from the different loss relief options, although in most cases getting immediate tax repayments from the carry-back option will be preferred where a company is currently struggling for cash flow.
Capital expenditure (CAPEX) is depreciated in the accounts, but this depreciation is not allowable for tax purposes. Instead, businesses can claim specific tax allowances, but these differ considerably for ‘Plant and Machinery’ (P&M) and ‘structures and buildings’, the latter writing off the asset much more slowly. Indeed, most small business can relieve all their P&M expenditure in the year of acquisition.
The definition of P&M is not straightforward and different types can receive different rates of tax allowance.
For companies (but not unincorporated businesses and LLPs) the Chancellor has announced significant additional tax relief for P&M expenditure incurred from 1 April 2021 to 31 March 2023. Notably, this allows most expenditure on new P&M to qualify for 130% relief (i.e. £1,300 for every £1,000 spent) in the year of acquisition. With a 19% Corporation Tax rate, this gives effective tax relief of 24.7% on the amount actually spent, to encourage companies to invest in P&M prior to Corporation Tax rates going up for those with profits above £50,000 in April 2023.
This extra tax break has knock- on consequences, in that there is significant extra record-keeping required and special rules when the P&M is subsequently sold.
Note that, with very limited exceptions (e.g. dual-control cars used by driving instructors and hackney carriages), cars are not eligible for these new allowances.
Vans, however, are eligible, so the next couple of years could be a good time to renew vans that your company owns.
Tax relief on CAPEX is a complex area, but the speed at which your business or company will get tax allowances may affect your investment decisions. Please speak to us to clarify the rules before undertaking any major expenditure on capital items.
From 6 April 2021, a new NIC relief came in to encourage businesses to take on new employees who are veterans of HM Armed Forces. This relief, which will apply a zero rate of employers’ NIC up to the upper secondary threshold (£967 per week for 2021/22), is only available for 12 consecutive months from the veteran’s first day of civilian employment after leaving the armed services.
Employers can claim relief even if the employment starts before 6 April 2021 but will only be able to claim for the remaining qualifying period.
From April 2021 to March 2022, employers will need to pay the associated secondary Class 1 NIC as normal and then claim them back retrospectively from April 2022 onwards.
From April 2022 onwards, employers will be able to apply the relief in real time through PAYE.
If you are thinking of taking on an employee who has recently left HM Armed Forces, we can make sure you comply with all the relevant rules to get this NIC break for a year.
6 April 2021 saw major changes to the tax rules for workers providing services via their own ‘Personal Service Company’ (PSC). Since April 2017, the worker’s clients in the public sector have had to make decisions over the worker’s tax status; this is now extended to private sector clients too, unless those clients are ‘small’. There is also an exclusion for clients that are neither UK resident nor have a fixed place of business in the UK.
Where they apply, these ‘off-payroll working’ rules replace the previous IR35 regime, meaning that HMRC cannot come after the PSC for unpaid PAYE and National Insurance Contributions (NIC), if the effective relationship between the worker and client for tax purposes is regarded as employment rather than self employment. It will be the end-client, or fee-payer (if different), which will be liable to withhold the worker’s payroll taxes when paying the PSC’s invoices. Note, however, that the PSC still has IR35 tax risk where the client is either small or a non-UK business.
Any non-small UK private sector client, or public sector client, must now provide a Status Determination Statement (SDS) to the contractor and all relevant parties (e.g. a recruitment agency) in the contractual chain, at the time the contract starts or before the off-payroll worker starts work. This will indicate whether the client intends to put the worker on the payroll for tax purposes. Some businesses contracting with PSCs have been slow to issue these, so if you have not received one you should chase this up with your client.
If the contractor disagrees with the decision made by their client on the SDS, they can ask the client to reconsider it. We can help you decide whether an SDS appears to be correct or not.
These new rules make an already complicated area of tax even trickier to deal with. The good news is that HMRC has confirmed it will adopt a ‘light touch’ approach to penalties. There will be no penalties for inaccuracies relating to the off-payroll working rules in the first 12 months of the regime, unless there is evidence of deliberate non-compliance.
Where a client decides to deduct the worker’s payroll taxes when paying the invoices issued by the PSC, it has an impact in several other areas too, including:
If all or most of a contractor’s work is going to be subject to payroll taxes under the off-payroll working rules, they may prefer to become a normal employee of that client. Although this may sometimes be an option, many clients will not offer it, as it would mean the worker having full employment rights (e.g. holiday pay and statutory sick pay). This is not the case with the off-payroll rules, where the client or other fee-payer merely pays over payroll taxes, but such statutory employment rights are given by the worker’s own PSC.
Where contractors no longer need their PSC, it can be ‘struck off’ or liquidated. The trade-off between the costs and tax-efficiency of these alternatives will need to be considered.
The VAT ‘domestic reverse charge’ for construction industry businesses came in on 1 March 2021. It changes how VAT must be accounted for on construction-related services provided by sub-contractors.
Where the rules apply, VAT-registered sub-contractors still issue VAT invoices, but do not actually charge VAT. Instead, the invoices will state that the reverse charge applies and show the amount of VAT that must be accounted for by their customer. No VAT is therefore payable to the sub-contractor; instead, the customer accounts for both the output tax and input tax through their own VAT return.
These changes have major consequences and give plenty of scope for errors to occur. Note, in particular, that sub-contractors who have previously used the VAT Flat Rate Scheme will very likely now be better off outside the scheme.
The rules on tax relief for travel and subsistence are completely different depending on whether you are Self- employed or are an employee (or director) of a company. It is easy to misunderstand them, as has been shown in two recent cases at the First-Tier Tribunal (FTT).
The Self-employed case (Hamish Taylor v HMRC (TC07893)) concerned a contractor based in Melrose in Scotland, who undertook various assignments in Swindon (for higher pay rates) and based himself there for several months. HMRC denied relief for his hotel costs in Swindon and his travel costs from Scotland.
The Tribunal held that staying in Swindon for some 165 nights during the tax year meant that his base for the work on a variety of sub-contracts was in Swindon. The disputed expenses were effectively general commuting costs for this Swindon work and so were disallowed.
Had he gone to Swindon for a specific contract, the travel and accommodation costs would probably have been deductible, as his base of operations would have still been his home in Scotland, even if the engagement in Swindon had lasted several months.
The employee case (Narinder Sambhi v HMRC (TC07717)) concerned a worker normally based in Birmingham who was sent to work at various locations in London for a period of several years, travelling home at weekends. He believed that each site qualified as a temporary workplace, so claimed relief for his travel and subsistence. He had not worked at any of the sites, individually, for more han 24 months, the statutory limit for a workplace to be regarded as temporary under the rules for employees.
The FTT found that the journey times to each site from his accommodation in London differed by no more than half an hour and the cost varied by no more than £14, so (in the Tribunal’s view) the change of worksites was not substantial. His work at various sites in Greater London should therefore be treated as one workplace, which had become a permanent workplace after 2 years. The total expenses disallowed were over £20,000.
Whether you can get tax relief on expenses is often a significant factor in deciding whether to take on new Self-employed work far from home or, if you are an employee, in deciding to agree to a secondment.
Please speak to us to get clarity on what are often complex rules, ideally before you take on such assignments.
*This advice is written for the benefit of our clients. Further advice should be obtained before any action is taken.
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