Who We Are
The Founders of 34square
Adam Topham (left) and Ralf Willems founded 34square early in 2020. They have called upon skills and capabilities honed from almost five decades between them, of business process improvement and enterprise solution transformations, to derive an optimised contractor engagement model in light of the IR35 reforms from April 2021. They pulled together the required expert legal and technical resources to research, design, commission and launch the sophisticated and innovative 34square platform. Adam is passionate about preserving the rights of contractors to sell their services through their limited companies on the open market. He is an equally ardent supporter of the legitimacy of clients’ right to procure such services outside IR35 and to harness the value of same, where there is no case to be argued that disguised employment is in play. He is grateful for the vision his business partner, Ralf Willems, brought to 34square when he declared our team must know everything there is to know about IR35 and the phenomenon that is status determination. Through over a thousand hours of deep research into case law precedent, CEST and other assessment tools and the HMRC Employment Status Manual, and expert consultation with four separate law firms and other leading IR35 experts, Adam and Ralf are now deeply knowledgeable on the topic.
What is the IR35 Reform and What Does it Mean?
Since 2000, when IR35 legislation was implemented, contractors that sell services via their own limited companies have been deciding whether to sell them as a limited company and treat and pay tax on the revenue as a company (outside IR35), or treat revenue as PAYE income and pay tax and National Insurance accordingly (inside IR35). If they choose the former, and are deemed by HMRC to be doing so contrary to IR35 legislation, it is the contractor that HMRC pursues for unpaid back tax and National Insurance.
However, from April 06th 2021, medium and large private sector clients (HMRC definition here: https://www.gov.uk/guidance/april-2020-changes-to-off-payroll-working-for-clients#conditions) will become responsible for determining the IR35 status of engagements of contractors. They will have a legal obligation to take reasonable care in doing so. If they are proven by HMRC to have failed in that obligation, they will be liable for back tax, National Insurance and possibly penalties. Public sector clients became liable for IR35 status determination in 2017.
HMRC’s main agenda was and is to stop large corporates from engaging contractors for roles that would traditionally be permanent employee positions, to avoid employer national insurance and other fiscal responsibilities and disadvantages associated with hiring employees.
We know from a colossal weight of research and dialogue, that most in British industry cannot see the wood for the trees and swirling fog, when it comes to navigating what to do in the face of the reforms.
In January 2020, 34square was formed. We set out to provide British industry with a solution to optimally manage the impact of the IR35 off payroll legislation changes in place from April 2021. We have lifted the swirling fog and can show you the wood. The intent was and is to remove all client and agent barriers in the way of engaging contractors outside IR35. As a result, we have:
- Via a sophisticated IR35 assessment process and unique, groundbreaking contractor capabilities, provided clients and agents with a no-cost framework to predictably, safely and efficiently engage contractors outside IR35 and meet client status determination statement and reasonable care obligations.
- Neutralised the notion that a cornerstone of outside IR35 status, the right of substitution, is a sham or a loophole, by rendering the right and the robust capability irrefutable, whether used or not.
- Removed any potential for the right of substitution, a potential sole determinant of outside IR35, to be attacked and dismantled in a tribunal by HMRC.
Our Substitution page explains how Right of Substitution is actually a benefit for clients, that is often misunderstood or misinterpreted by those clients. These FAQs also explain what clients are and more importantly, are NOT signing up to.
Our quest in pursuing our vision was to unearth everything there is to know about IR35 and off payroll legislation. That quest included:
- Over 1200 hours of research, legal and expert advice, encompassing consultation with four separate legal firms and many other industry experts.
- Meticulous qualitative and quantitative analysis of 1100 pages of case history and legal precedent from 36 tribunal cases.
- Pouring over all of the content on HMRC's Employment Status Manual pages.
- Scores of hours of testing in HMRC's Check Employment Status for Tax (CEST) tool and in other commercially available tools.
The Essence of 34square
After more than 20 years, the notion that IR35 status determination is a mystical art, with an infinite list of variables and combinations that warrant artificial intelligence in order to fathom, is still at large and widely accepted. In reality, it's not a large or complex data set. Our assessment questionnaire helps you understand that data set and the IR35 status drivers, even to the extent it shares the engagement attributes and working practices you should explore in order to reach an accurate, fair and equitable outcome. Parties are well within their rights to derive or refine those attributes and practices for a particular status outcome, as long as they reasonably reflect genuine intent and subsequent reality. No engagement is by definition, inside or outside. 34square has published guidance in this area on The HR Director website. You can also read it in one of our blogs.
HMRC Aims to Expose and Exploit the Cracks
- Case law and HMRC’s position, supported by their IR35 assessment tool, CEST, mandate that an unfettered right of substitution can be a sole determinant of outside IR35 status.
- It rarely is, because HMRC often manages to find and exploit cracks, perhaps in contract wording and contradiction, witness testimony or even in practical feasibility issues.
- In the 36 tribunal cases we reviewed, there were 26 in which a right of substitution was absent or in which HMRC succeeded in dismantling it. HMRC won 17 of those 26 cases in which an unfettered, genuine right of substitution could not be established.
- In the other 10 cases, a genuine, unfettered right of substitution was established. HMRC lost them all.
- What that means is that with no strong right of substitution, HMRC win approaching 70% of cases. With a strong right of substitution they fail to fracture, they have won none as this goes to press.
So… we have REMOVED all of the cracks
- A Right of Substitution Declaration between contractor limited company and client, to avoid witness testimony issues and combat weaknesses in contract wording.
- A ground-breaking actual substitution capability, with process automation tools to generate legally binding contracts that legitimately oblige the substitute company to deliver the services, whilst the main contractor’s company retains overall responsibility to the end client.
We CAN break down the barriers to outside IR35 for clients.
- We can help clients to understand the true risks and trade-offs between outside and inside IR35.
- With us, clients and agents can remove the outside IR35 compliance, back-tax, NI and penalty risks from non-compliance.
- Clients and agents CAN safely implement a win-win policy for yourselves and your valuable, talented resources.
- Clients CAN keep your contractor resources as driven, passionate, dedicated and productive as they always have been.
- We provide the client with an end to end, robust, workflow-driven, audit-trailed IR35 assessment and Status Determination Statement process. We even throw in the mandated disputes process as well.
Inside IR35 carries risks and costs for clients.
- Many clients believe they aren’t paying more with inside IR35 or other PAYE routes. In many cases you aren’t. That’s the point. You’re paying possibly 15-25% LESS, but it’s costing YOU the same. Your money is working nowhere near as hard. And when you are paying for talent and effort, you often get what you pay for. Put another way, if your money isn't working hard...
- You otherwise need to pay substantially higher rates to be competitive.
- Most contractors will still prefer to be outside IR35 and so you risk losing vital resources and disrupting your change programs.
- With inside IR35, people WILL likely use your SDS Disputes process, an extra headache and cost.
- You may be subjected to claims for employee rights from inside IR35 resources, and find yourself in employment status tribunals.
- You can of course hire on fixed term contracts, but you severely limit the pool of resources available to you.
- Our vision is to give contractors the power to help yourselves… to DO something about it.
- We have invested heavily for the long-term, researching, designing, building and launching a one-of-a-kind, highly sophisticated web-platform charging only a nominal annual fee, in order to facilitate scale and resulting influence.
- Clients and agents benefit from dedicated, motivated and passionate talent. It would, though, be fair to observe that contractors benefit most directly from a thriving outside IR35 channel, so we suggest it's appropriate for contractors to help a little so that clients and industry can help them back.
Some clients already threw in the towel.
- This picture shows black succumbing to fools mate, a four-move checkmate manoeuvre.
- HMRC doesn’t have anyone in fools mate. They themselves have been engaging hundreds of outside IR35 contractors for many years and will no doubt continue to do so.
- You might ask why? It’s because they otherwise cannot acquire and retain the resources they need.
- There is no towel. With the 34square model, you can keep engaging outside IR35 resources, just as you always have.