The Scotsman

Tax overhaul red tape set to bind oil and gas firms

- Comment Euan Smith

The last four years have been tough for the UK’S oil and gas industry, with an unstable oil price leading to the loss of thousands of jobs and reduced investment in exploratio­n and production.

Happily, the outlook is now more promising and, with an emphasis on greater collaborat­ion between the major operators and service companies, a leaner, more efficient supply chain is contributi­ng to an uptick in North Sea activity.

However, this progress could be hindered as the UK government seeks to introduce measures which will directly influence the relationsh­ip between businesses and the self-employed contractor­s who form a large part of their workforce.

In 2000, the government introduced the tax rules known as IR35 for “off-pay- roll workers”. This was to ensure that contractor­s who worked through a personal service company (PSC) would pay broadly the same income tax and National Insurance contributi­ons (NICS) as employees, if they were deemed by HMRC to be sufficient­ly similar to employees in working arrangemen­ts.

In April 2017, the government reformed these rules for public sector engagement­s and announced it would consult on how to tackle non-compliance with off-payroll working rules in the private sector. It is safe to assume there is a very real prospect of a tougher tax regulation regime being introduced to the private sector which would mirror that in the public sector.

The main proposal is to move the responsibi­lity of assessing whether someone is deemed an employee from the PSC to the end-user of the labour. The end-user will have to go through a process of assessing the reality of existing relationsh­ips with contractor­s, and potentiall­y deducting tax and NICS on behalf of HMRC. In doing so, the risk of non-compliance would shift from the individual’s PSC to the end-user who engages that individual.

The oil and gas sector has traditiona­lly used large numbers of contractor­s, partly because it offers flexibilit­y – it is easier to staff up or down daily-paid contractor­s than employees when work levels fluctuate. Companies may find they have to re-examine the working arrangemen­ts they have in place with those contractor­s, to ensure that there are none who would fall foul of the government test of “deemed employment status”, requiring the deduction of tax and NICS at source. If this comes to pass, it will represent a significan­t administra­tive burden for North Sea businesses. HR, tax and compliance resources will be stretched to audit and identify individual­s who should be given “deemed employment” status under IR35.

Logistical issues aside, contractor­s are likely to take a dim view of this new dynamic. If they are to be treated as “employees” as far as tax and NI is concerned, they may take the view they are better off being full-time employees on payroll, enjoying the benefits associated with employment status.

As well as the increased administra­tive burden on businesses, the contractor’s “day rate” will be less appealing if income tax and NICS are deducted prior to PSC payment. Will contractor­s accept that upfront reduction in income, or will businesses accept a proportion of the new upfront cost? Will businesses accept the increase in cost and in risk?

Senior industry players are working with bodies such as Oil & Gas UK to present a unified response and contributi­on to the government review. There are genuine concerns amongst major employers about how this will impact on day-to-day operations and longer term planning, not to mention balance sheets. This new regime could come in to force as early as April and, while industry bodies will make a strong case for minimising disruption to the North Sea and its renewed confidence, this is an unwelcome distractio­n which heralds a red tape rigour the industry could do without.

Euan Smith, partner and employment law specialist at Pinsent Masons.

There is a very real prospect

of tougher regulation in the

private sector

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