Employment status case turned on right of substitution

Employment status tax cases often make the headlines in the professional press and the recent case involving Deliveroo riders was no exception. The meal delivery firm won the case in the Central Arbitration Committee (CAC), confirming that its riders are not ‘workers’. This is the latest challenge to the employment status of ‘gig economy’ workers.

In this case, the Independent Workers Union of Great Britain (IWGB) sought to argue that riders were workers, so that they could claim union recognition, thus affording them certain collective rights regarding the minimum wage entitlement, holiday and sick pay, and pension contributions.

The CAC rejected the claim that the riders were ‘workers’, hinging the case on the riders’ ‘ability to turn down a job both before and after accepting it’.

Historically, a genuine right of substitution, whether ‘sideways’ to someone of similar seniority or by way of delegation to a junior, has been regarded as one of the strongest factors favoring self-employment.

The case follows a number of claims brought by workers in the ‘gig’ economy demanding rights such as holiday pay, the minimum wage and pensions contributions. Drivers at Uber won a recent victory when the company lost an appeal at the Employment Appeal Tribunal against an earlier decision to grant them workers’ rights.

The transcript from the Deliveroo riders’ case can be found at:
www.gov.uk/government/uploads/system/uploads/attachment_data/file/663126/Acceptance_Decision.pdf.

Abolition of Class 2 NICs delayed

On 2 November 2017, the Government announced a one year delay to the abolition of Class 2 National Insurance Contributions (NICs). Class 2 NICs will now be abolished from 6 April 2019 rather than 6 April 2018.

The delay will allow time for the government to engage with interested parties and Parliamentarians with concerns relating to the impact of the abolition of Class 2 NICs on self-employed individuals with low profits.

The relevant legislation will be contained in the National Insurance Contributions (NICs) Bill, which will now be introduced in 2018 with the measures it will implement taking effect one year later, from April 2019. These measures include the abolition of Class 2 NICs, reforms to the NICs treatment of termination payments and changes to the NICs treatment of sporting testimonials.

Broadly, Class 2 NICs are being removed to simplify the system. Those with profits below the small profits threshold (£6,025) will need to pay Class 3 contributions, which are five times as much as Class 2 contributions, if they wish to build up an entitlement to contributory benefits such as the state retirement pension. Based on 2017/18 rates, the proposed change would mean that people falling into this category would pay £592.80 a year more in Class 3 contributions.

According to the Office for National Statistics, there were 967,000 people with an annual income from self-employment below the small profits threshold in 2015/16. The proposals, as they currently stand, potentially impact on a considerable number of people.

Commenting on the delay, the Low Incomes Tax Reform Group (LITRG) said it was keen for a way to be found for the low income self-employed to continue to be able to make affordable savings towards their pension at a rate similar to the present Class 2, perhaps by introducing a lower rate Class 3.

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IR35 Personal Service Companies

The ‘IR35’ rules are designed to prevent the avoidance of tax and national insurance contributions (NICs) through the use of personal service companies and partnerships.

The rules do not stop individuals selling their services through either their own personal companies or a partnership. However, they do seek to remove any possible tax advantages from doing so.

Summary of approach

Removal of tax advantages

The tax advantages mainly arise by extracting the net taxable profits of the company by way of dividend. This avoids any national insurance contributions (NICs) which would generally have been due if that profit had been extracted by way of remuneration or bonus.

The intention of the rules is to tax most of the income of the company as if it were salary of the person doing the work.

To whom does it apply?

The rules apply if, had the individual sold his/her services directly rather than through a company (or partnership), he/she would have been classed (by HMRC) as employed rather than self-employed.

For example, an individual operating through a personal service company but with only one customer for whom he/she effectively works full-time is likely to be caught by the rules. On the other hand, an individual providing similar services to many customers is far less likely to be affected.

Planning consequences

The main points to consider if you are caught by the legislation are:

  • the broad effect of the legislation will be to charge the income of the company to NICs and income tax, at personal tax rates rather than corporate tax rates
  • there may be little difference to your net income whether you operate as a company or as an individual
  • to the extent you have a choice in the matter, do you want to continue to operate through a company?
  • if the client requires you to continue as a limited company, can you negotiate with the client for increased fees?
  • if you continue as a limited company you need to look at the future company income and expenses to ensure that you will not suffer more taxation than you need to.

The last point is considered in more detail below.

Employment v self-employment

One of the major issues under the rules is to establish whether particular relationships or contracts are caught. This is because the dividing line between employment and self-employment has always been a fine one.

All of the factors will be considered, but overall it is the intention and reality of the relationship that matters.

The table sets out the factors which are relevant to the decision.

HMRC will consider the following to decide whether a contract is caught under the rules

Exceptions to the rules

If a company has employees who have 5% or less of the shares in their employer company, the rules will not be applied to the income that those employees generate for the company.

Note however that in establishing whether the 5% test is met, any shares held by ‘associates’ must be included.

How the rules operate

The company operates PAYE & NICs on actual payments of salary to the individual during the year in the normal way.

If, at the end of the tax year – ie 5 April, the individual’s salary from the company, including benefits in kind, amounts to less than the company’s income from all of the contracts to which the rules apply, then the difference (net of allowable expenses) is deemed to have been paid to the individual as salary on 5 April and PAYE/NICs are due.

Allowable expenses

  • normal employment expenses (eg travel)
  • certain capital allowances
  • employer pension contributions
  • employers’ NICs – both actually paid and due on any deemed salary
  • 5% of the gross income to cover all other expenses

Where salary is deemed in this way:

  • appropriate deductions are allowed in arriving at corporation tax profits and
  • no further tax/NICs are due if the individual subsequently withdraws the money from the company in a HMRC approved manner (see below).

Points to consider from the working of the rules

Income and expenses

The income included in the computation of the deemed payment on 5 April includes the actual receipts for the tax year.

The expenses are those incurred by the company between these two dates.

In order to perform the calculations, you need to have accurate information for the company’s income and expenses for this period. You may need to keep separate records of the company expenses which will qualify as ‘employee expenses’.

Timing of corporation tax deduction for deemed payment

A deduction is given for the deemed payment against profits chargeable to corporation tax as if an expense was incurred on 5 April. This means that relief is given sooner where the accounting date is 5 April.

Pension contributions

Payments made by your company into a personal pension plan will reduce the deemed payment. This can be attractive as the employer’s NICs will be saved in addition to PAYE and employee’s NICs.

Other points to consider

Extracting funds from the company

For income earned from contracts which are likely to be caught by the rules, the choices available to extract funds for living expenses include:

  • paying a salary
  • borrowing from the company and repaying the loan out of salary as 5 April approaches
  • paying interim dividends

The advantage of paying a salary is that the tax payments are spread throughout the year and not left as a large lump sum to pay on 19 April (22 for cleared electronic payment). The disadvantage is fairly obvious!

Borrowing from the company on a temporary basis may mean that no tax is paid when the loan is taken out, but it will result in tax and NICs on the notional interest on the loan. There may also be a need to make a payment to HMRC equal to 32.5% (25% for loans made before 6 April 2016) of the loan under the ‘loans to participators’ rules.

The payment of dividends may be the most attractive route. If a deemed payment is treated as made in a tax year, but the company has already paid the same amount to you or another shareholder during the year as a dividend, you will be allowed to make a claim for the tax on the dividend to be relieved to avoid double taxation.

The company must submit a claim identifying the dividends which are to be relieved.

Example of payment of dividend

Mr Arthur owns 100% of the share capital of Arthur Ltd. All the income of the company is caught by the IR35 rules. Accounts are prepared to 5 April 2017. An interim dividend of £20,000 is paid on 30 September 2016. The deemed payment on 5 April 2017 is £80,000.

There is no immediate tax cost of the dividends being paid out either to the company or to the shareholder.

The company will pay tax and NICs on the deemed payment of £80,000 in the normal way ie on 19 April 2017.

The company can make a claim for the £20,000 dividend not to be treated as a dividend for tax purposes in Mr Arthur’s hands.

Getting ready for 5 April

  • the deemed payment is treated as if an actual payment had been made by the company on 5 April
  • tax and NICs have to be paid to HMRC by 19 April
  • final RTI submissions showing details of the deemed payment has to be submitted to HMRC by 19 April
  • Where a provisional payment of tax and National Insurance contributions has been made because it has not been possible to accurately calculate the deemed payment and deductions by 19 April, then any adjustments should be reported via an Earlier Year Update (EYU) submitted electronically to HMRC before the following 31 January. However, interest on overdue tax is chargeable from 19 April if tax and NICs are underpaid on the basis of provisional figures.

It is therefore in your interests to have accurate information on the company’s income and expenses on a tax year basis and, in particular, separate records of the amount of the company expenses which will qualify as ‘employee expenses’.

Partnerships

Where individuals sell their services through a partnership, the rules are applied to any income arising which would have been taxed as employment income if the partnership had not existed.

In other words, where a partnership receives payment under an ‘employment contract’:

  • income of the partnership from all such contracts in the year (net of allowable expenses as described above) are deemed to have been paid to the individuals on 5 April as salary from a deemed employment with PAYE/NICs due accordingly and
  • any amount taxed in this way as if it were employment income is not then taxed as part of the partnership profits.

Partnerships excluded from the rules

Many partnerships are not caught by the rules even if one or more of the partners performs work for a client which may have the qualities of an employment contract.

The rules will only apply to partnerships where:

  • an individual, (either alone or with one or more relatives), is entitled to 60% or more of the profits or
  • all or most of the partnership’s income comes from ‘employment contracts’ with a single customer or
  • any of the partners’ profit share is based on the amount of income from ‘employment contracts’.

Penalties

Where a personal service company or partnership fails to deduct and account for PAYE/NICs due under the rules, the normal penalty provisions apply.

If the company or partnership fails to pay, it will be possible for the tax and NICs due to be collected from the individual as happens in certain circumstances under existing PAYE and NIC legislation.

Intermediaries – travel and subsistence

From 6 April 2016, changes to the rules are introduced to restrict tax relief for travel and subsistence expenses for workers engaged through an employment intermediary, such as a recruitment agency or a personal service company.

No relief will be allowed for home to work travel and subsistence where a worker:

  • personally provides services to another person
  • is employed through an employment intermediary
  • is under (the right of) the supervision, direction or control of any person, in the manner in which they undertake their work.

Employment intermediary will be defined as a person, other than the worker or the client, who carries on a business (whether or not with a view to profit and whether or not in conjunction with any other business) of supplying labour.

Where a personal service company is also within the scope of the IR35 legislation this measure will only apply to those contracts where a deemed employment payment is made, or would be made if all the individual’s remuneration was not being taken as employment income. In these circumstances the supervision, direction or control test will not be used.

Managed Service Companies (MSCs)

MSCs had attempted to avoid the IR35 rules. The types of MSCs vary but are often referred to as ‘composite companies’ or ‘managed PSCs’. HMRC had encountered increasing difficulty in applying the IR35 rules to MSCs because of the large number of workers involved and the labour-intensive nature of the work. Even when the IR35 rules had been successfully applied, an MSC often escaped payment of outstanding tax and NIC as they have no assets and could be wound up.

The government has introduced legislation which applies to MSCs. The rules:

  • ensure that those working in MSCs pay PAYE and NIC at the same level as other employees
  • alter the travel and subsistence rules for workers of MSCs to ensure they are consistent with those for other employees
  • allow the recovery of outstanding PAYE and NIC from ‘specified persons’, primarily the MSC directors, if the amounts cannot be recovered from the company.

MSCs are required to account for PAYE on all payments received by individuals.

Off-payroll working in the public sector

Changes have been made to the IR35 rules in relation to engagements in the public sector. These changes:

  • move the decision of whether to apply the IR35 rules from the individual worker’s own service company to the public sector body, agency or third party paying them
  • the public sector engager or agency is treated as an employer for the purposes of tax and Class 1 NICs (including employer NICs) and the amount paid to the worker’s intermediary will be deemed to be a payment of employment income to that worker
  • the 5% allowance used by the worker’s intermediary for certain business expenses is removed for those contracts with the public sector.

HMRC have provided a new digital tool to help identify whether engagements fall within the new rules, which will apply to contracts entered into, or payments made, on or after 6 April 2017.

The Cost of Driving a ‘Greener’ Car

The financial benefits of driving a company car have continued to erode over recent years, but this benefit remains one of the most popular and potent perks of a job.

Broadly, the taxable benefit arising on a car is calculated using the car’s full manufacturer’s published UK list price, including the full value of any accessories. This figure is multiplied by the ‘appropriate percentage’, which can be found by reference to the car’s CO2 emissions level.

This will give the taxable value of the car benefit. The employee pays income tax on the final figure at his appropriate tax rate (e.g. 20% for basic rate taxpayers; 40% for higher rate taxpayers). In general terms, less tax will be payable on ‘greener’ cars those with lower CO2 emissions.

To provide stronger incentives for the purchase of ultralow emissions vehicles (ULEVs), at the 2017 Spring Budget, the government announced that new, lower bands will be introduced for the lowest emitting cars. The appropriate percentage for cars emitting greater than 90g CO2/km will rise by one percentage point. The changes, which are expected to take effect from 6 April 2020, are as follows:

  • The graduated table of company car tax bands will include a differential for cars with emissions of 1 to 50g CO2 per km based on the electric range of the car.
  • For cars with an electric range of 130 miles or more, the appropriate percentage will be 2%; for cars with an electric range of between 70 to 129 miles, the appropriate percentage will be 5%; for 40 to 69 miles, the appropriate percentage will be 8%; for 30 to 39 miles, the appropriate percentage will be 12%, and for less than 30 miles, the appropriate percentage will be 14%.
  • For cars that can only be driven in zero-emission mode, the appropriate percentage will be 2%. For all other bands with CO2 emissions of 51g CO2 per km and above, the appropriate percentage will be based on the CO2 emissions only. For cars with emissions of 51 to 54g CO2 per km the appropriate percentage will be 15%. For cars with emissions above 54g CO2 per km, the bands will be graduated by 5g CO2 per km and the appropriate percentage will increase by 1% for each 5g CO2 per km band, up to a maximum of 37%. For cars with emissions above 90g CO2/km, the appropriate percentage will increase by 1% in comparison to 2019/20 levels.

Whilst at first glance these changes look positive, for 2017/18, the appropriate percentage for a car with a list price of £18,000 and CO2 emissions of just 50gkm, will be 9%. For a higher rate taxpayer, the taxable benefit will be £1,620 (£18,000 x 9%) and the tax payable will be £648 (£1,620 x 40%). In 2018/19, the tax payable by the employee will rise to £936 ((£18,000 x13%) x 40%), representing a 30% increase.

Compare this with an employee (also a higher rate taxpayer) driving a company car with a list price of £18,000, but CO2 emissions of 160g/km. The appropriate percentage for this car is 31% for 2017/18. The taxable benefit will be £5,580 (£18,000 x 31%) and the tax payable will be £2,232 (£5,580 x 40%). In 2018/19, the tax payable rises to £2,376 ((£18,000 x 33%) x 40%), representing only a 6% increase.

Although the tax payable on cars with lower emissions is still considerably lower than those with higher outputs, the increases set to take effect over the next few years will mean ‘greener’ company car drivers will experience steeper increases in the resulting tax payable.

Using the Inheritance Tax Gift Exemptions

As Benjamin Franklin observed in 1789 ‘In this world nothing can be said to be certain, except death and taxes.’ More than two centuries on, this statement still rings true! These days however, inheritance tax is often referred to as a voluntary tax, because there are various ways to minimise liability to it, or even avoid it all together.

PETS

Any assets (cash or otherwise) that a person gives away during their lifetime, that do not fall under the exempt transfer rules, such as transfers between spouses and civil partners and gifts to charities, may escape inheritance tax as a potentially exempt transfer (PET).

There is no limit on the amount of PETs that can be made during a lifetime.

Broadly, for a PET to escape inheritance tax completely the donor needs to survive for seven years after making the gift. If he or she dies within the seven-year period, the PET is partially chargeable depending on the number of years that have elapsed since they made the gift.

The reduction is given in the form of taper relief, a sliding scale used to determine tax liabilities on gifts between three and seven years before death.

Current rates of taper relief and the resulting IHT rate are as follows:

Period before death in which gift made:

  • 0 to 3 years – reduction 0%; tax rate is 40%
  • 3 to 4 years – reduction 20%; tax rate 32%
  • 4 to 5 years – reduction 40%; tax rate 24%
  • 5 to 6 years – reduction 60%; tax rate 16%
  • 6 to 7 years – reduction 80%; tax rate 8%
  • More than 7 years – reduction 100%; tax rate 0%

If the donor dies within seven years of making a PET the value of that PET will be added in to the value of his or her estate to determine how much, if any, inheritance tax is due.

The PET will therefore use up some or all of the available nil-rate band, potentially increasing or even creating an inheritance tax liability for the estate. In addition, if the value of the PET exceeds the level of the nil-rate band in force for the year in which the donor dies, then additional inheritance tax will be payable by the recipient of the gift.

Taper relief may reduce the amount of tax payable. However, taper relief can only reduce an inheritance tax liability resulting from a PET becoming chargeable on death. The relief does not reduce the value of the gift itself.

Taper relief is particularly beneficial for those with large estates. Giving away £1 million and living for seven years takes the money right out of the inheritance tax net. But even if the donor lives for only six years, the £1 million less the nil- rate band is charged at just 8% under taper relief, instead of the full 40% inheritance tax rate.

Lifetime exemptions

The annual exemption enables a person to give away up to £3,000 per annum free of IHT. In addition, any unused exemptions from the previous year, may be carried forward, although any unused exemptions earlier than a year will be lost. This means that if no gifts have been made in the previous tax year, a person could make an IHT-free gift in the current tax year of £6,000. If the amount exceeded the annual exemption available, it could still remain exempt from IHT, if the person making the gift survives seven years.

In addition to the annual exemption, small gifts of up to £250 per year may be made free from IHT. The gift must be an outright gift to any one person each tax year.

Gifts on marriage can also be free of IHT provided that the gift does not exceed set limits. The limits depend on the relationship to the married couple/ civil partners and are as follows:

  • Parents – £5,000
  • Grandparents, great-grandparents – £2,500
  • Bride to groom/ groom to bride/ bride to bride / groom to groom – £2,500
  • Anyone else – £1,000

These exemptions may be combined in certain circumstances to reduce a potentially exempt transfer (PET).

All Change for Termination Payments

As confirmed in the 2017 Spring Budget, the tax rules governing termination payments will change from 6 April 2018.

The term ‘termination payment’ is typically used as a generic summary for a lump sum payment, which is normally (but not always) made to an employee at the time the employment comes to an end. The current rules governing the taxation of termination payments are complex and over recent years, have been subject to manipulation by some employers seeking to minimise income tax and NIC liabilities. The forthcoming changes seek to clarify the rules, particularly in relation to the existing £30,000 tax-free exemption for genuine redundancy payments.

PILONs

Under the existing rules, it is necessary to look at whether payment in lieu of notice (PILON) is the contractual right of the employee. Broadly, if a contractual right exists, it will be fully taxable as earnings. This ‘contractual right’ element has provided a degree of scope for manipulating arrangements to take payments outside the taxable earnings boundaries – and in doing so, for potentially escaping the charges to tax and NICs.

From 6 April 2018, all PILONs, rather than just contractual PILONs, will be treated as taxable earnings. Therefore, under the new rules, all employees will pay tax and Class 1 NICs on the amount of basic pay that they would have received if they had worked their notice in full, even if they are not paid a contractual PILON. This means the tax and NICs consequences are the same for everyone and it is no longer dependent on how the employment contract is drafted or whether payments are structured in some other form, such as damages.

Aligning income tax and NICs

The existing £30,000 income tax exemption for genuine terminations payment will remain. However, the National Insurance Contributions rules will be aligned with the tax rules so that, from 6 April 2018, employer NI contributions will be payable on the elements of the termination payment exceeding £30,000. The employer NIC charge will be achieved through Class 1A contributions.

Going forward

As with most anti-avoidance measures, it is likely that HMRC will monitor how these changes are operated and, if perceived misuse of the rules is detected, further changes can be expected.

Although the existing £30,000 exemption will remain intact, the circumstances in which the exemption can be applied will, in essence, be restricted to genuine redundancy situations. This will remain a contentious area on which specialist advice will still be recommended.

Update – Making Tax Digital for Business

In July, the Government confirmed that the Summer Finance Bill would be published in September, with the measures dropped from the pre-election Finance Bill being reintroduced in more or less the same form, from the initially planned commencement dates. Clauses dropped from the pre-election bill and expected to be brought back include those on Making Tax Digital (MTD), although the implementation date for income tax is being postponed.

There is widespread agreement that Making Tax Digital for Business is the right approach for the future. However a number of concerns about the pace and scale of change have been raised. As a result the government has announced that the roll out for Making Tax Digital for Business has been amended to ensure businesses have plenty of time to adapt to the changes.

Businesses will not now be mandated to use the Making Tax Digital for Business system until April 2019 and then only to meet their VAT obligations. This will apply to businesses who have a turnover above the VAT threshold – the smallest businesses will not be required to use the system, although they can choose to do so voluntarily.

This change means that no business will need to provide information to HMRC under Making Tax Digital for business more regularly than they do now. VAT has been online since 2010 and over 98% of VAT registered businesses already file electronic returns.

HMRC have confirmed that they will start to pilot Making Tax Digital for VAT by the end of this year, starting with small-scale, private testing, followed by a wider, live pilot starting in Spring 2018. This will allow for well over a year of testing before any businesses are mandated to use the system. No business will be mandated before 2019.

From April 2019, businesses above the VAT threshold will be mandated to keep their records digitally and provide quarterly
updates to HMRC for their VAT.

Paying Class 2 NICs

Whether or not Class 2 National Insurance Contributions (NICs) can be paid depends on whether an individual falls within the definition of a ‘self-employed earner’ for NIC purposes, and if so, whether profits are in excess of the existing small profits threshold (£6,025 for 2017/18).

The definition of a self-employed earner is defined as someone ‘who is gainfully employed in Great Britain otherwise than in employed earner’s employment (whether or not he is also employed in such employment)’ (SSCBA 1992, s 2(1)(b)). A person who is regarded as self-employed for income tax purposes, and who is taxed on the profits from their trade, profession or vocation, is generally, but not always, regarded as a self-employed earner for NIC, which means they will be required to pay Class 2 and Class 4 NICs where applicable. By contrast, a person who receives investment income is not liable to pay NICs on that income.

Being liable to pay Class 2 NICs can be quite advantageous as contributions give access to certain contributory-based benefits for a relatively low outlay – £2.85 per week for 2017/18. For example, where NICs are not otherwise payable, it may be advantageous for a landlord to consider turning ‘investment’ letting into a business to bring it within the scope of Class 2 NICs, which in turn will enable him to build up an entitlement to state pension.

Self-employed people are currently required (subject to certain conditions) to pay both Class 2 and Class 4 NICs. Class 4 NICs are, broadly, calculated by reference to the payee’s profits. For 2017/18 they are payable at the rate of 9% on profits between £8,164 (the Lower Profits Limit (LPL)) and £45,000 (the Upper Profits Limit (UPL)), and at 2% above £45,000.

From April 2018, however, Class 2 contributions will be abolished and the Class 4 contributions system will be reformed to include a new threshold (the Small Profits Limit (SPL)). Although we do not yet know what the individual thresholds will be, we do know that people with profits between the SPL and LPL will not be liable to pay Class 4 contributions, but will be treated as if they have paid Class 4 contributions for the purposes of gaining access to contributory benefits. All those with profits at or above the Class 4 SPL will gain access to the new state pension, contributory Employment and Support Allowance (ESA) and Bereavement Benefit. Those with profits above the LPL will continue to pay Class 4 contributions.

The abolition of Class 2 will have adverse consequences for those with profits below the current small profits threshold, who are not obliged to pay Class 2 but are doing so voluntarily in order to build up their contributions record. If they wish to continue to secure contributory benefits by paying NICs after April 2018, they will instead have to pay voluntary Class 3 contributions, currently payable at the rate of £14.25 per week – five times the Class 2 contribution rate, and a difference of £592.80 based on 2017/18 rates.

Self-employed individuals should be encouraged to check their NIC record for the last few years – this can be done online through the Gov.uk website. Those wishing to protect their state pension entitlement should ensure that they have paid, and continue to pay, as many Class 2 contributions as they need to before abolition in April 2018. A total of 35 years of contributions paid or credited are currently needed to secure entitlement to the full state pension. The minimum needed to secure any state pension is 10 years.

Research & Development Tax Relief

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Does your company do one of the following seven things?

  • Develop new software
  • Implement product automation
  • Launch new products
  • Develop new materials
  • Create new recipes
  • Improve processes
  • Develop new products or improve existing ones

If so then your company could qualify for R&D tax relief and get some money back to help fund your next project.

With an average client benefit of five-figures, contact us today or by calling us on 0121 556 1072 and start recuperating money today.