Tax and LLPs: check if your members will be taxed as employees from 6 April

With the beginning of the tax year on 6 April comes the annual requirement for LLP management and their finance team to re-test whether their members should be taxed as employees or as self-employed.

These mandatory re-test dates are in addition to the assessments to be carried out whenever the LLP’s next remuneration year starts and when triggered by changes in the relevant arrangements, such as a change in the basis of remuneration, control or capital contribution.

In this article we set out a brief reminder of the assessment conditions, some of the main pitfalls to look out for and practical steps to take once the assessment has been made.

Background

Partnerships and LLPs are back in focus for HMRC. Bumper profits for professional services firms over the past year mean that increased fixed share partner remuneration may create a need to increase capital contributions.

It also means the costs of getting this assessment wrong are greater than usual, and could lead to significant liabilities and disruption should a member unexpectedly switch to being an employee for tax purposes.  If that happens, the LLP will face having to pay employer’s national insurance on the member’s income and may suffer penalties for late payment of tax.

In summary, in order to be taxed as self-employed, an LLP member must have at least one of the three key hallmarks of partnership:

1. variable remuneration which goes up and down based on the LLP’s profits (“Condition A”)
2. significant influence over the affairs of the LLP (“Condition B”)
3. a capital contribution of greater than 25% of his/her expected fixed profit share (“Condition C”).

Condition A: disguised salary

Members relying on Condition A must, in summary, have less than 80% of their remuneration classes as “disguised salary”.

“Disguised salary” means remuneration which is either fixed or, if its variable, is varied without reference to the overall profits of the LLP or is not, in practice, affected by the LLP’s profits.

A common pitfall when assessing disguised salary is to fail to realise that variable remuneration will still be disguised salary unless it is variable by reference to the overall profits of the LLP.

Examples of where this confusion may arise include:

• where members are paid variable bonuses based on personal performance (unless the bonus is a proportion of the LLP’s overall profits)
• where remuneration is calculated by reference to the turnover of an office, department or of an international grouping (such as many international law firms), rather than the profits of the LLP as a whole. These may be examples of disguised salary, notwithstanding that the amounts in question may vary from year to year.

A second pitfall to avoid is failing to consider if the reasonable expectations of the LLP’s profits have changed since the last time the Condition was tested. A change in those expectations will affect the balance between a member’s fixed share and his/her variable share of profits.

The point is particularly easy to miss for members who have a fixed number of profit ‘units’ or ‘points’, since the number of units or points allocated to the member might stay numerically the same, but the expectation as to the value of those units or points can change.

Condition B: significant influence

Members relying on Condition B must have significant influence over the affairs of the LLP. To qualify for this condition the member must have power to control the direction of the business, such as appointing new members, moving premises, expanding the scope of the LLP’s business and setting strategy. 

A key pitfall for this test is when LLPs confuse management powers with administrative responsibilities.  HMRC guidance explains that administrative functions – such as paying invoices, filing accounts and tax returns, dealing with suppliers and handling routine compliance matters – will be unlikely to meet Condition B. 

Although members in a small LLP may often be in a position to rely on Condition B, this will not always be the case if, for example, much of the management power is vested in a single member or committee of members, or if the direction of the LLP is largely controlled by a parent entity.   

When re-testing this Condition, it is important to check that the individual’s role has not changed and still encompasses control over the whole of the LLP and not just, for example, a particular office or business line.

Condition C: capital contribution

For LLPs that are too large for Condition B to apply, Condition C is a common approach to avoid fixed share partners being taxed as salaried members. This is achieved by having them contribute not less than 25% of their disguised salary as capital to the LLP.

The critical issue to be aware of is that there is no grace period to contribute increased capital if an existing member’s remuneration is increased beyond where his or her capital contribution is 25% or more of their remuneration.

This is one reason why it makes sense to always require partners to maintain sufficient capital to provide a buffer to account for remuneration increases and to make the contribution of capital a condition to any remuneration increase taking effect.

Practical steps

Once an assessment has been made as to whether a member should be taxed as an employee or self-employed, the LLP should ensure that the basis on which that judgment was reached is appropriately documented.

There are a range of documents that LLPs will have or generate that should support the judgment as to a member’s status. These might include:

• an up-to-date members’ agreement setting out management roles and the basis of partner remuneration
• financial information, such as profitability targets and forecasts
• other records relating to remuneration, such as management or remuneration committee minutes.

LLPs should be ready for their assessment of their members’ tax status to be scrutinised by HMRC at any time. An investigation may be triggered by HMRC reviewing a member’s tax returns, the LLP’s PAYE filings, or HMRC may simply choose to investigate a firm without any clear trigger.

LLPs should not just make a judgment about a member’s tax status, but make sure that they record the basis on which that assessment has been made, to evidence the LLP’s expectations.

Contact us

Please do get in touch if you require assistance with any aspect of judging whether a member can rely on a condition or how best to record those judgments.