ESM9001 | Basic principles: off-payroll working: when the public sector off-payroll working rules at Chapter 10 ITEPA 2003 apply

THE FOLLOWING PAGES UP TO AND INCLUDING ESM9095 RELATE ONLY TO ENGAGEMENTS WITHIN CHAPTER 10 ITEPA 2003

Section 61M Chapter 10 ITEPA 2003

Regulation 13 The Social Security (Miscellaneous Amendments No. 2) Regulations 2017

The legislation applies where;

• an individual personally performs, or is under and obligation personally to perform, services to a client (see ESM8015), who is a public authority (see ESM9020), under arrangements involving an intermediary in circumstances such that if the contract had been made directly between the client and the worker then the worker would be;

  • Regarded for income tax purposes as an employee of the client or the holder of an office under the client; or the worker is an office-holder who holds that office under the client and the services relate to that office.

  • Regarded for NICs purposes as an employee of the client or the holder of an office under the client; or the worker is an office-holder who holds that office under the client and the services relate to that office.

• the services are provided not under a contract directly with the client but through a third party (known as an intermediary)

• payment for the services is made on or after 6 April 2017

• one of the conditions at ESM9010 is satisfied according to the type of intermediary

The finding of the FTT in HMRC v Gary Lineker Media is binding only on the parties and was not subject to a further appeal hearing at the Uppper Tribunal. Notwithstanding this, HMRC maintains that an English general partnership where a sole worker is executing a contract to provide the services is a third party intermediary within the scope of Chapter 10 Part 2 ITEPA 2003.