Five reasons why HMRC’s IR35 report has been criticised

An HMRC report on how IR35 reforms have impacted contractors has attracted criticism.

Read on to find out what the report said about IR35 and why it’s been accused of being ‘wide of the mark’.

HMRC report – what were the key findings?

Published in December, the HMRC report was based on a telephone survey of 353 businesses with 39 follow-up interviews.

Here are some of the key findings:

• 130,000 workers are likely to have been affected by off-payroll reforms in April 2021
• IR35 reform generated an additional £1.8 billion in tax revenue between October 2019 and March 2022
• businesses employing contractors incurred an overall one-off cost of between £90 million and £230 million to implement the reforms
• they spent a further £150 million to £370 million between April 2021 and April 2022
• the number of workers affected by IR35 reform makes up 2.5 per cent of the total self-employed workforce

Read more: What is IR35? A guide for the self-employed

What happened to contractors affected by IR35 reform?

According to HMRC estimates, the majority of contractors impacted by off-payroll working reform have become an employee of a business that isn’t their own freelance company.

It suggests that approximately three per cent have continued to work for their own freelance company having been deemed ‘employed for tax purposes’ by the business they work for.

Of those who have become an employee of another organisation:

• 65 per cent have moved to organisations which aren’t agencies or umbrella companies (which could include becoming an employee of a client)
• 20 per cent have moved to an umbrella company
• 15 per cent have moved to an agency

Do businesses still work with contractors post-IR35 reform?

HMRC’s research suggests that 41 per cent of organisations surveyed now work with fewer off-payroll contractors than they did in March 2020.

Meanwhile, 35 per cent said they hired the same number of off-payroll workers and 23 per cent said they’ve taken on more since IR35 reform.

The survey also found that 47 per cent of businesses worked with the same number of off-payroll contractors in September 2021 than in March 2020.

Read more: What does being inside IR35 mean?

Five reasons why the HMRC report has been criticised

A number of off-payroll working experts and commentators have criticised the government’s report, according to publications like Contractor UK and The Register.

One commentator said the report was ‘wide of the mark’, while another said the findings should be taken with ‘a pinch of salt’.

Here are five reasons why it’s attracted a negative response:

1. Could contractors be paying unnecessary taxes?

Many of the 130,000 workers who have moved to payroll since the reforms may have incorrectly been categorised as inside IR35, meaning they are now paying tax they shouldn’t be.

Matt Fryer, Managing Director of Brookson, said that the HMRC research should have included findings on incorrect determinations or status determination statements.

“HMRC seems keen to highlight that this represents just 2.5 per cent of the total self-employed workforce, and less than one per cent of the total workforce. Is this an indication that the government is content with the unfairness of this outcome?,” he said.

2. Timing of research doesn’t paint ‘accurate picture’

By focusing on the period between March 2020 and September 2021, the research failed to give an accurate indication of the before and after scenario, according to Dave Chaplin, CEO of IR35 Shield.

This is because most businesses had already changed their working practices as the delay to off-payroll working reforms was announced just three weeks ahead of the original deadline in April 2020.

"Choosing March 2020 as the baseline is somewhat of a statistical howler and means the report paints a less disruptive picture than what occurred in reality,” Chaplin said.

3. Underestimating the upheaval of IR35 reform

The HMRC report fails to tell the story of the impact of changing off-payroll rules in 2021, according to Seb Maley, Chief Executive of Qdos:

“Read this report and you’d think that the off-payroll rules have been plain sailing.

“We’re…told that half of businesses have found it ‘easy’ to comply with the off-payroll rules, and that around eight in ten firms assess IR35 status on a case-by-case basis.

“These statistics paint a nice picture, but I would take them with a pinch of salt. True, more businesses are getting to grips with these rules, but it’s been a difficult journey.”

4. HMRC should have spoken to contractors and accountants

A former HMRC employee and now Co-Founder of Bauer & Cottrell, Kate Cottrell said the findings were "questionable" due to a lack of perspectives.

She commented: “To make this research have any value, you cannot limit it to asking just one party that has been affected by IR35 reform, even if you are only seeking short-term effects.

“For starters ask contractors how easy it was for them; ask all the accountants how many contractors they have lost and ask all the umbrellas how much new business they have gained.

“Ask the agencies how their client and contractor bases have changed; ask all the trade bodies, insurance providers and accountancy institutes how IR35 reform has been for them.”

5. A pool of survey respondents that was too small

Cottrell went on to criticise the number of respondents to HMRC’s survey.

She said there should have been evidence from "tens of thousands of real-life experiences" instead of 353 calls and 39 follow-up interviews.

“It really is time for some balance, to seriously establish the short-term effects and of course the longer-term ones right up to the present day," Cottrell commented.

“A key question is how much HMRC has spent on it all. Noticeably absent from this report, I suspect it will be an astonishing amount,” she added.

HMRC responds to IR35 criticism

Responding to the negative comments about its study, an HMRC spokesperson said: “This reform has succeeded in improving compliance with the off-payroll rules, with more people who work like employees paying tax like employees, levelling the playing field.

“It is nonsense to assert that most businesses had changed their workforces by March 2020. Our analysis shows only 20,000 of the 130,000 workers identified who changed the way they work due to the 2021 reform had done so by March 2020.”

Useful guides for contractors and freelancers

• How to do a self-employed tax return
• How to become self-employed
• How to budget: a budget calculator and guide for the self-employed
• What does professional indemnity insurance cover?