Despite new IR35 regulations and guidance in April, and the Department of Work and Pensions and Home Office hit with fines of £87m and £29m, respectively. HM Courts and Tribunal Service has fallen victim of CEST misuse with a total fine of £12m.
Commenting on the latest Check Employment Status for Tax (CEST) casualty, Dave Chaplin, CEO of IR35 Shield said: “HMRC’s CEST tool is failing fast and now we are hearing of yet one more government department, HM Courts and Tribunal Service, hit with a high tax bill to the tune of £12m because it has relied on CEST to assess its contracting workforce. One of CEST’s major flaws has been its over-reliance on substitution, which any defence expert knows is folly. Over the last few years, many industry experts have pointed out CEST’s failings to HMRC but those messages were ignored and now we are witnessing the fallout and financial damage.
“My advice to anyone who has used CEST is to revisit your determinations and if they rely on a valid right to substitute then seek advice on the correct interpretation of the law. Also, recheck the status with the assumption that the substitution clause is not valid, to make sure you have not also been badly exposed due to the flaw.
“Moreover, it is crucial that once you hire a worker on an “outside IR35” basis that you continue to monitor the status throughout the engagement. Regular checking and gathering contemporaneous evidence are crucial in forming a pre-emptive defence. Poor assessment decisions left alone, without any evidence to back them up, can prove costly as we are seeing with these recent governmental departments.”
The FCSA, the membership body dedicated to raising standards and promoting supply chain compliance for the temporary labour market, responded saying that it had expressed its concern to HMRC about the validity of the CEST tool. “The current fines perhaps demonstrate that the CEST tool needs re-visiting in terms of a valid SDC determination. In the light of the current outcomes, it would be silly for HMRC to simply press ahead without stopping and reviewing the tool.
“In the interim, marketplace experts, including many FCSA members, have developed alternative tools that can assist the sector in creating more accurate determination tests. So far, there is an ironic pattern emerging here in that one government department is taking money from another and so the government balance remains at zero. The real threat comes when other non-government bodies start to fall victim to huge fines because of using a government promoted test. That will not sit well with a sector that is working hard to support the government to ‘Build Back Better’.”
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