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National Minimum Wage or £97 pw?

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    National Minimum Wage or £97 pw?

    I would like this discussion to be opened up for wider debate as I believe that many of you are overpaying tax/NIC by approx £1,000 pa (net of additional taxes payable).

    My belief is that, as a director, you do not have to pay NMW unless you have a service contract. I acknowledge that a service contract may be implied (as well as verbal or written) but this is sufficiently ambiguous that if it were my money, I would be saving the £1,000 pa.

    Other arguments I have heard are that you are more likely to be investigated if you pay yourself £97 pw, that you should pay yourself at least sufficient to pay your monthly living expenses and that £97 pw "takes the piss". I will address each of these separately.

    It is certainly not my experience that you are more likely to be investigated and I've never seen any stats to back it up.

    I actually think that you are more likely to be investigated under NMW on the basis that HMRC are receiving cheques and payslips and P35's with figures on them so there is potentially something to investigate whereas with a salary of £97 pw the deductions are usully nil. I believe that an employer compliance officer is less likely to investigate a P35 showing nil deductions as there is less likelihood of it being wrong. This is just gut instinct though - I have no stats to back it up.

    Even if it were correct, let's be a bit more scientific about this and do some numbers:-

    What are the chances of an IR35 investigation if you pay £97 pw. Let's be really conservative and say 2%. What are the chances of an IR35 investigation if you pay yourself NMW? Let's go the other way and say 0%. So the increase in chances are very conservatively 2%.

    Let's then argue that the chances of a successful IR35 challenge is 20% (again, very, very conservative).

    The average successful IR35 challenge costs £12K.

    Therefore, being as conservative as reasonably sensible, the expected cost of paying yourself £97pw vs NMW is 2% x 20% x £12K = £48.

    I think more realistically the figures are probably as follows:-

    Chance of an investigation if salary = £97 pw - 0.5%
    Chances of an investigation if salary = NMW - 1%
    Chances of a successful IR35 challenge - 5%
    (And the £12K figure remains the same)

    You can play with the numbers any way you like. You won't get anywhere near £1,000.

    And if you're really cautious, you could just insure against the IR35 liability (I am aware that some policies require you to be pay yourself NMW but there are others that don't).

    The second argument is that you should pay yourself sufficient to cover your monthly living expenses. I think it is just a myth that this could ever be argued. Certainly, I have never come across any legislation or case law to suggest that this could be an issue. Some people genuinely earn less than they spend. It is none of HMRC's business.

    The third point is that it is "taking the piss". Again, this is simply not a factor. In fact there was a court case where the judge ruled that it was perfectly reasonable for a taxpayer to organise his affairs in such a way as to minimise his tax liabilities.

    Anyone agree/disagree with me? If you disagree, what is your reasoning?
    Last edited by THEPUMA; 26 February 2007, 20:16.

    #2
    Originally posted by THEPUMA
    I actually think that you are more likely to be investigated under NMW on the basis that HMRC are receiving cheques and payslips and P35's with figures on them so there is potentially something to investigate whereas with a salary of £97 pw the deductions are usully nil.
    That's highly speculative (but then so is the opposing argument). If you've nothing to pay you still need to send in those NIL payslips, and surely they look very suspiscious?

    I do kind of agree. If you're investigated, it doesn't matter either way as you'll either lose and have to pay the full amount, or win in which case you could have just paid the £5K salary. And it's ironic that after all the advice and discussion over what we shouldn't do over IR35, what we're all saying is that we want to stay in the grey area inbetween and hope that nobody looks too hard.

    I would like to hear an explanation from Nixon Williams and SJD as to their exact reasoning behind advising NMW.
    Will work inside IR35. Or for food.

    Comment


      #3
      Originally posted by THEPUMA
      I actually think that you are more likely to be investigated under NMW on the basis that HMRC are receiving cheques and payslips and P35's with figures on them so there is potentially something to investigate whereas with a salary of £97 pw the deductions are usully nil. ?
      Null and void argument. As a shareholder HMRC will also get a self assesment form from you when you touch the divs so they know what you are doing. Also a P14 end of year.

      I think as a minimum wage slave you are more likley to mix in with the crowd that a £5035 per year director.

      Personally I like to think that HMRC will look at anyone paying £5k and wonder what else they are pushing to the limit to get around tax. However at £10k I think they will see you being more cautious. Pushing stuff to the limit is ok, untill you push something too far that you were not mean't to.

      Comment


        #4
        To be honest with you, i would rather pay that extra £1,000 in PAYE and NI and keep myself in the grey and take some comfort from it.
        Atleast then the tax man is getting something in his pocket.

        I know Brookson's is offering what you suggest..........

        My accountant suggested that i should take NMW and hes handled alot of contractors under ltd company and i trust him as he is a tax advisor and im an engineer. I go with the expert as he knows best!
        Keep it clean!!!

        Comment


          #5
          Not a null and void argument at all. I assume people are worried about an IR35 challenge. These are invariably instigated by employer compliance officers. These people investigate your employment records. They would not be looking at your personal tax return unless something gave them reason for suspicion.

          And there is no law against paying yourself £5,035 pa (notwithstanding the points previously made re NMW/implied contracts.

          Addressing VectraMan’s point, no need to send in NIL payslips, one call is all it takes to tell HMRC that there are going to be no deductions for the entire tax year.

          The other point to make is that I am sure many people are worrying unnecessarily about IR35. If you’ve got a decent contract and your accountant tells you it is not caught by IR35 then you’ve got nothing to worry about.

          So you are worrying about a tiny chance of being investigated when an investigation is likely to determine that you owe no additional tax.

          Get a decent accountant and if you are of a nervous disposition, insure against the professional fees and/or tax arising in the event of an investigation. You will still have plenty of cash left over and your IR35 worries will have disappeared.

          Comment


            #6
            Originally posted by THEPUMA
            Get a decent accountant
            You an accountant then?
            It's my opinion and I'm entitled to it. www.areyoupopular.mobi

            Comment


              #7
              What is the annual NMW?

              Technically if your contracts are IR35 friendly that let them investigate as much as they like (assuming you have insurance to cover the cost of the investigation)...it would surely be crazy to pay extra tax. Its like paying Gordo protection money...almost a bribe!! He's a clever bugger, I'll give him that, has us all worrying and giving him money for nothing!!!

              Someone on this board must know someone who knows someone who knows how they choose who to investigate? If it was me running the show, I would investigate those with the largest Salary 'v' Dividend percentage difference, as this is where presumably I would have the most potential to gain.

              Comment


                #8
                Yes I am.

                Comment


                  #9
                  Originally posted by NewBoy
                  If it was me running the show, I would investigate those with the largest Salary 'v' Dividend percentage difference, as this is where presumably I would have the most potential to gain.
                  well if your taking £97 p/w then the rest is made up of divident payments which would mean that over 90% circa of your income is divident related which i would assume looks bad and looks like a tax and NI dodge.

                  And also if your taking £97 p/w then what about expenses? If your expenses exceed your salary by a vast amount then it also doesnt look good. My expenses can be anything between £500 - £1000 a month depending on wheather im in the office or working out on site on some road and that wouldnt look good when i send my forms back.

                  So my expenses and divident payments would be vastly greater than my salary which would look dodgy from the outset and even i would investigate that!
                  Keep it clean!!!

                  Comment


                    #10
                    Originally posted by THEPUMA
                    Yes I am.
                    is that in question to you being an accountant?
                    Keep it clean!!!

                    Comment

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