The Construction Industry Scheme continues to evolve. Are your clients prepared?

The Construction Industry Scheme continues to evolve. Ensure your clients are prepared for the need for full compliance by HMRC.

The CIS scheme has, of course, always required extra thought by Asset Based Lenders. Clients operating within the construction industry have a complex withholding mechanism to administer when paying contractors, and failure to comply can lead to claims from HMRC for tax, penalties and interest. In extreme cases, failure to operate the system properly can have a devastating effect on the economics of a business.

All contracts for construction work within the UK and its territorial waters (with the exception of work for private householders) are caught within the HMRC CIS. This means that every transaction within CIS needs to be reviewed and the appropriate actions taken.

Who is caught by CIS?

  • Any ‘mainstream construction’ business carrying out construction operations.
  • Any ‘deemed contractor’ being a non-construction business but spending more than an average of £1m per year on construction operations (unless the construction is in respect of a building used in their own business, e.g. restaurant chains).
  • Property developers who build or renovate property with a view to selling it at a profit.
  • Property investment businesses.

What do your clients need to do, and when?

Contractors must verify all their subcontractors with HMRC before paying them. They must ensure that all monthly returns, together with payments due to HMRC are submitted on or before the due dates. They must keep the engagements of self-employed individuals under constant review.

CIS reviews – ensuring that your processes and procedures are compliant

Losing gross payment status can be catastrophic for a business – in addition to any reputational issues and loss of inclusion on preferred supplier lists, there may also be a direct loss of income. 20 per cent of the labour element of invoices submitted to your clients' customers would have to be paid to HMRC rather than retained in their business. Sometimes PAYE deductions can off-set the 20% ‘loss’, however this will not always be the case.

Reviewing current processes to ensure all mandatory reporting and compliance requirements of CIS are met is the best way for your clients to guarantee their business won’t lose its status.

Self-employed or employed?

HMRC achieve sizeable settlements where they review self-employed workforces and successfully show that the workers are employees for tax purposes.

There is no precise definition in law of what constitutes being self-employed, and the case law which has built up over many years is difficult to understand and often inconsistent. HMRC expect that businesses should be able to make these difficult decisions themselves and can impose penalties in cases where the wrong judgements have been made. It is vital that your clients keep all self-employed engagements to ensure that they remain on the right side of the line.

Gross payment status cancelled – prevention is better than any cure

Much of the HMRC review of compliance is computer-generated and based on a rigid and inflexible view of the rules. It takes no account of human error and/or ‘reasonable excuse’, and can often generate notices to withdraw gross payment status based on very limited information.

Although appeals can be lodged and HMRC can be forced to withdraw notices, a business may be on the back-foot when trying to defend against an HMRC allegation of compliance failure. Dealing with these matters, even if ultimately successful, distracts key people from profit-making activity.

Construction businesses should ensure that all of their compliance issues (including directors’ self-assessment returns/payments) are kept up-to-date.

Employment business – what do your clients need to consider?

Legislation effective from 6 April 2015 requires employment businesses to report the payments they make to third parties to HMRC. Even if already caught by CIS, they must now provide details of the individuals they pay who do not appear on an RTI return.

If your clients engage labour-only subcontractors and provide their labour to others, they need to consider whether these new rules effectively make them an ‘employment business’ with an obligation to report.

Working with overseas contractors and subcontractors

Any business entering into a UK construction contract is caught by CIS, even when it is not a UK tax resident. It can minimise the impact by registering for CIS, but if it pays an overseas business gross, it will be liable for any under-deductions together with penalties for failing to return details of the payments.

CITB levy

The CITB is a government agency providing training in the construction industry. To support this, businesses are charged a 5 per cent levy on all labour-only costs. This includes employees such as administrative staff and any subcontractor who does not provide materials.

The danger for construction businesses lies in the narrow definition of ‘main materials’ provided by subcontractors. For example, CITB maintains that skilled bricklayers who do not provide bricks and mortar are labour-only and subject to the 5 per cent levy. CITB Inspectors are achieving settlements covering a number of years based on failure to observe this strict interpretation.

How can we help?

RSM has a team of experts in the construction tax sector available to help your clients' business. Contact Chris Ratten if you would like more information.

Not only can we review their processes and procedures and assist with compliance, we can also assist with all of the ‘areas to consider’ listed below.

Areas to consider

  • CIS reviews – your clients should ensure their processes and procedures are compliant.
  • Self-employed or employed?
  • Gross payments status cancelled – prevention is better than any cure.
  • Employment businesses and Gangmasters – due diligence considerations.
  • Overseas businesses coming to the UK.
  • CITB levy – increased action from CITB leads to claims.