In 2007 the Managed Service Company (“MSC”) legislation, contained in Chapter 9 Part 2 of the Income Tax (Pensions and Earnings) Act 2003 (“ITEPA”), came into force.
Despite the legislation now being almost two decades old, HMRC enforcement in this area has increased in recent years. HMRC were successful in the Court of Appeal in Christianuyi Limited & Others v HMRC [2019] EWCA 474 (Civ) (“Christianuyi”) which confirmed that the MSC legislation could apply to personal service companies (“PSCs”) who engage accountancy service providers. For a summary of Christianuyi see this article.
Following Christianuyi, HMRC has been specifically targeting specialist accountancy service providers who provide accountancy advice to contractors on the basis that those businesses: (a) are Managed Service Company Providers (“MSCPs”), and (b) their PSC clients are MSCs. There are currently proceedings going through the First Tier Tax Tribunal to decide how the rules apply to those businesses. Depending on how the proceedings are decided, many more businesses could be issued with HMRC enquiry notices and significant tax assessments.
Businesses which advise and engage with PSCs should seek appropriate legal advice on their business practices now.
Directors and ex-directors of potential MSCPs should also obtain advice on their position as the tax debt of the PSCs can potentially be transferred to them personally for periods during which they were a director or “associate” of the MSCP.
Section 61B(1) ITEPA states that a “Managed Service Company” is a company which: (i) provides the services of an individual to others; (ii) pays that individual all or most of the fees it charges to those others; (iii) pays the individual in a way which increases the net amount received by the individual, as compared with what he would have received net if he had earned the fees as his employment income; and (iv) involves an MSCP in its business in one of the ways set out in section 61B(2) ITEPA.
All four MSC conditions must be met for the MSC legislation to apply.
If the PSC is deemed to be an MSC then all payments to the individual are treated as employment income and taxed as if the individual was employed by the MSC (so subject to PAYE and National Insurance Contributions on the full amount).
An MSCP is “a person who carries on a business of promoting or facilitating the use of companies to provide the services of individuals,” (section 61B(1)(d) ITEPA).
HMRC considers “promotion” to mean promoting or marketing the use of PSCs, and “facilitation” to mean “helping, making easier, enabling” (see HMRC Employment Status Manual: ESM3515 - Managed Service Companies (MSC): MSC Providers).
An MSCP is “involved with the company” (i.e. the PSC) if the MSCP or an associate of the MSCP:
· benefits financially on an ongoing basis from the provision of the services of the individual (section 61B(2)(a) ITEPA);
· influences or controls the provision of those services (section 61B(2)(b) ITEPA);
· influences or controls the way in which payments to the individual (or associates of the individual) are made (section 61B(2)(c) ITEPA);
· influences or controls the company's finances or any of its activities (section 61B(2)(d) ITEPA); or
· gives or promotes an undertaking to make good any tax loss (section 61B(2)(e) ITEPA).
Only one of the above conditions needs to be met for this section to apply.
HMRC’s position (see HMRC’s spotlight 67 on MSCs) is that the first condition is met if the alleged MSCP charges any fee for its services. It is expected that this would be a relevant factor in almost every professional arrangement.
There are two exemptions to the application of the MSC legislation:
1. Under section 61B(3) ITEPA a person does not fall within section 61B(1)(d) “merely by virtue of providing legal or accountancy services in a professional capacity.” This is aimed at preventing accountants and legal advisors who advise PSCs from being caught by the legislation; and
2. Section 61B(4) ITEPA contains an exemption for staffing businesses. For example, an employment business or agency undertaking its core business of placing work seekers (including those operating through companies) with end clients.
In broad terms, the PSC bears the risk and is responsible for paying the tax. However, under the transfer of debt regulations which apply to MSC arrangements (section 688A,
Part 11, ITEPA), if HMRC cannot recover the tax from the PSC then it can apply to transfer the debt to:
· The director, or other office holder or associate of the PSC;
· The MSCP or the director, or office holder or associate of the MSCP; or
· Any other person who directly or indirectly has encouraged or been actively involved in the provision by the PSC of the services of the individual, or a director, or other office holder or associate of such a person.
The MSCP is likely to have deeper pockets than the PSC which may not have any assets or hold any funds, or which may have been dissolved. Therefore, the MSCP faces a significant risk of the debt being transferred to the company or its directors if the PSCs are found liable for the tax.
There are strict time limits within which a transfer of debt notice must be issued by HMRC to the MSCP, and there is a right of appeal against such a notice.
