IMA consultation response to HMRC s taxation of controlling persons. About the Interim Management Association (IMA): The Interim Management Association (IMA) was founded in 1987 and represents the leading 25 interim management providers in the UK. It is a specialist sector group of the Recruitment and Employment Confederation (REC). The IMA is the industry body that sets out the ethical standards for the interim management industry, and its members adhere to a strict code of practice. IMA members are professional services firms, and their clients include FTSE 100 companies, public sector organisations and small and medium sized enterprises (SMEs). These clients work across a range of industries. Introduction: Many organisations across the public and private sectors have recognised how vital it is to have the ability to quickly deploy highly skilled interim managers, on short-term contracts to deliver specific results immediately and effectively. As a result the market for their skills is growing significantly and is now worth 1.5bn - in fact this is an industry where Britain leads the world. However, the Government s review of contractors in the public sector and HMRC s Controlling Persons consultation, are a huge threat to this thriving industry. It will not only damage the productivity of organisations that rely on the skills of interim managers, but it could also seriously undermine the competitiveness of the UK's flexible labour market. Although there have recently been some high profile cases of individuals in the public sector using personal service companies to circumvent tax obligations, these cases are not genuine interim assignments and do not reflect the nature or motivations of true interim managers. August 2012 Page 1
People who have chosen a career in interim management are not looking for a permanent job or trying to avoid tax rather they are top level executives that have made a career choice to become independent consultants, and they accept the risks and rewards of doing such. It is this very independence that allows them to make strategic, dispassionate decisions that benefit the organisations which hire them. If the proposed changes are implemented, our research shows that many interim managers will see little benefit in taking a short-term employed contract and will instead opt for a permanent job in the UK or assignments abroad. If this happens we will lose a vital resource and talent pool for UK organisations. Furthermore, we firmly believe that legislation exists for ensuring appropriate payment of NIC s and taxes and that further confusion in this area is inadvisable. Proportionality: Questions: Q1. Is creating a provision which would require the engaging organisation to deduct income tax and National Insurance at source a correct and proportionate solution to this problem? The Government s proposals to deduct income tax and national insurance contributions at source are not considered to be a proportionate solution to address the problem of nonpayment of appropriate tax. The premise of the interim management sector is based on the temporary use of senior highly skilled executives. Deductions at source would further increase the administrative costs for engaging organisations. This may lead to a reduction in the use of Interim Managers which in turn would adversely affect the industry. Under the existing structure, whilst not completely effective for the collection of tax, it does simplistically distinguish and apportion responsibility for the payment of tax. The proposed new system may be more complex in this regard. This is likely to have a greater impact on areas like interim management, which (as stated above) revolve around the deployment of executives for short-term periods. August 2012 Page 2
Regulatory approach and impact: Q3. Are there alternative approaches that would better deliver the transparency the Government is seeking in the taxation of controlling persons than requiring them to have income tax and National Insurance Contribution deducted at source by the engaging organisation? There are two main alternatives (set out below) that when applied will be able to deliver the transparency the government is seeking in the taxation of controlling persons. The first alternative would be to enforce the IR35 legislation more effectively. The rules of IR35 introduced in April 2000 were implemented to deal with precisely this problem. Instead of attempting to create a new definition for controlling persons, it would be more useful to use a pre-existing term already defined by government such as that of office holders. This would hopefully achieve the same aim that the government is seeking to address. Q4. What are the consequences of this provision taking precedence over IR35 (part 2 Chapter 8 ITEPA 2003) Part 2 Chapter 7 ITEPA 2003 and all extra statutory provisions? Allowing the proposed new legislative measure to take priority over the existing IR35 rules and all extra statutory provisions, will ultimately increase the level of complexity and confusion. Engaging organisations will be faced with increasing administrative costs to adequately deal with a variety of workers including self-employed interim managers, intermediaries and controlling persons, all of whom will necessitate different tax obligations and employment benefits. Existing contractual arrangements with senior executives would be reviewed as a consequence. August 2012 Page 3
Q10. Is there any reason we should not exclude micro businesses, who are not part of a group structure from this provision? It is essential for micro-businesses to be able to take on highly-skilled staff on a short-term basis if and when they need to. The exclusion of this group however, can be seen as recognition by government that the proposed provision creates a burden to micro-businesses. That said there is no reason that the potential liability to larger businesses should not be adequately considered. Commercial impact: Q2. Does the proposed provision raise any commercial, employment or other issues that would need to be considered before any final conclusions are reached? If yes, please advise. The proposal raises serious commercial and employment concerns for the Interim labour market. The taxation of controlling persons threatens genuine commercial arrangements for all involved. By requiring all Interim Managers to be placed on the PAYE system of the engaging organisation, this is likely to generate restrictions on their ability to manage multiple clients. Interims Managers often work on a short-term basis where average engagements tend to last 7 months and approx. 70% of all assignments are completed within a 12 month period. This may very well change as Interim Managers will not find it beneficial to work as an employee of the engaging organisation. This will have an effect on the flexible landscape of the UK labour market. Interim Managers cannot legitimately operate as a limited company and independent worker if they are paid directly by the engaging organisation. They will become a pseudo employee but without any of the benefits of an employee. Highly skilled workers will be forced to pull out of the Interim market, severely impacting on workforce flexibility and the growth of entrepreneurship. August 2012 Page 4
The proposal will increase the future cost of engaging controlling persons which will restrict the ability of companies to recruit these valued individuals for their short-term needs. Over the years, organisations in both the private and public sector have had the opportunity to benefit from specialist advice offered by interims without being burdened with the costs of recruiting permanent, full time employees. The suggested changes will not only diminish the productivity level of the engaging organisation but will undoubtedly stagnate the economic recovery of the UK labour market. Q5. Are there any circumstances where this measure would prevent genuine commercial arrangements? If yes please explain. The IMA feels that genuine commercial arrangements could be affected. With the onus now on the end client, an engaging organisation may be unwilling to take on someone simply due to the fact that it will increase cost. Current benefits will be removed and the engaging organisation will have to pay more to acquire the skills they need even though the vast majority of Interims already pay the correct amount of tax. Interims will also find it less favourable to work on payroll of the engaging organisation as a fixed term employee and may therefore find it more useful to work abroad or change to permanent employment. This will be at a loss to UK businesses in both the public and private sector. A recent survey conducted by the Institute of Interim Management (IIM) showed that the majority of interims have rejected the Government s proposal and will no longer use PSCs. Approximately 97% of respondents have stated that with the new off-payroll rules, they will be forced to increase their daily rates in an effort to off-set the costs of increased taxes. This will severely hamper the ability for companies to afford the recruitment of high-level interims when necessary - to assist in the development of their businesses at critical stages. Definition of scope of controlling persons Q6. Is someone who has managerial control over a significant proportion of the workforce and/or control over a significant proportion of the organisations budget the correct delineation for a controlling person? August 2012 Page 5
The Government s proposed definition of a controlling person leaves the interpretation opened to misunderstanding and incorrect labelling. The proposal will affect the majority of Interim Managers - a large portion of who are likely to have managerial/budget responsibility on assignment. The definition of controlling person, is therefore not the appropriate terminology as it has the ability to capture a high portion of Interims Managers engaged to deliver against specific objectives on a short-term basis. To place all controlling persons on the payroll of the engaging organisation would cause catastrophic damage to the Interim Management industry. Q7. Should we extend controlling persons to bring a larger group within the remit of this provision? If so who and why? We would recommend that the government narrow (rather than extend) the term controlling persons. This will not only make it more carefully targeted, but equally more conducive to proper enforcement. Q8.Should controlling person be narrowed so that fewer people are within its remit? If so, who should be additionally excluded and why? The suggested definition of a controlling person should be narrowed to exclude those engaged on genuine interim assignments. An example of this would be an interim operating through a limited company, with appropriate professional indemnity, public liability and other insurances, charging a daily rate and working on separate assignments for a number of clients. It should also be narrowed to exclude significant control over the budget this makes the definition difficult for Senior Finance professionals such as interims. By the very nature of their role they require control over a significant proportion of the organisation s budget in order to successfully perform their duties. The IMA believes that if the new rule is brought in, the definition of controlling persons should be limited to offer certainty and ensure careful targeting. Our proposals above for office holders should therefore be considered as a better defined group in the private August 2012 Page 6
sector. In the public sector, the robust application of the Alexander review should correctly address job roles where there may be a risk of tax avoidance. Q9. Is this exclusion a proportionate exception to the proposed provision? The IMA feels that the above mentioned exclusion is proportionate. However, the term controlling persons must be adequately defined to permit accurate categorisation of individuals that may fall into this specific group. By doing this, HMRC would set out how and when the terms apply. IMA Contact Information: Bridgette Cameron bcameron@alpine.eu.com Jason Atkinson - Jason.Atkinson@russam-gms.co.uk For more information on the IMA, please visit: http://www.interimmanagement.uk.com/ August 2012 Page 7