Independent contractors have long known the challenges of correct employment classification, and the requirement to prove to the revenue authorities that their status is truly “independent”, and not pseudo-independent while being employed in all but title. While arguably a contractor working for one client for an extended period of time could be said to be more “employed” than “independent”, most contractors have been conscientious in making sure they pass the necessary tests of independence.
Latest position from SARS
However, the South African Revenue Service recently clarified its stance on the taxation of so-called Independent Contractors and/or Consultants. In its Interpretation Note 17 of 14 March 2018, it outlines stringent conditions for the taxation of Independent Contractors. In essence, the tests are so onerous that in most instances companies are obliged to deduct PAYE and to treat “Independent Contractors” as employees for income tax purposes.
SARS has adopted a “substance over form” approach. What this means is that even if an Independent Contractor passes the statutory test, this is over-ridden by the common law test. In other words, even if the contractual arrangements are that of an Independent Contractor, if the true nature of the work approximates the definition of an “employee”, then employers are required to deduct PAYE as they would for a standard employee.
In adopting a “substance over form” approach, SARS has applied both “control” and “intuitive” tests.
Tests of independence
If the Independent Contractor works under the supervision of the company and the company is therefore liable for the actions of that person (“vicarious liability”), then the contractor is not seen as independent – the “control test”.
The “intuitive test” is an arguably subjective evaluation of status, based on how an average member of the public would classify the worker – if someone would be described as an employee, then that person is not an Independent Contractor.
The “organisation test” assesses how integral the person is to the functioning of the company. If the role is seen as critical, rather than incidental, then that individual is not independent.
Finally, the “dominant impression” test measures the contractor against a range of criteria; failure to meet any of them may mean the person is regarded as an employee and therefore must be taxed as such. The “dominant impression” test is exhaustive and multi-factoral. Foremost amongst these is the need to be able to answer yes to the following criteria, inter alia:
- Person uses and/or chooses their own equipment and tools in the production of outputs
- Person directly bears all risk for the work performed
- Person determines own work, sequence of work, etc.
- Prson is bound by contract terms and not orders from company managers
- Person’s services are incidental to the employers operations
- Person is only paid when the work is complete, i.e., piece-work as opposed to remuneration by time period
What this means in practice
What does this mean for contractors and employers? If you operate as an Independent Contractor and thus avoid paying PAYE, you may be in for a nasty surprise: SARS will apply the “substance over form” approach and you may be deemed eligible for PAYE. Employers who employ contractors may be obliged to deduct PAYE; failure to do so will result in substantial penalties.
The decision tree provided in the SARS Interpretation Note makes it clear that a natural person resident and receiving remuneration in South Africa, who does not pass the “dominant impression” test, must be taxed as an employee. Furthermore, anyone working for a labour broker must be taxed as an employee. Personal service providers are also subject to employees’ tax.
Employers who apply the statutory test and are confident they have contracted a person as an Independent Contractor may be exposing themselves to huge risks. They are mistaken in thinking there is no obligation to deduct PAYE. If contractors do not pass the “control” and “intuitive” tests, they must be taxed as employees. The same applies to individuals who present themselves as “independents” but fail to comply with the true definition of an “Independent Contractor”.
Navigating the minefield
While tax law and independent contracting has never been simple, it has become much more complex with this latest guidance from SARS and the stakes are much higher. It’s not worth taking risks.
Whether you are an employer or a contractor, if you need advice on classification and tax status of independent contractors, contact Highveld on 012 367 5600 or We have extensive experience in managing and advising contractors and we can help you stay on the right side of SARS.
It’s no secret that salary costs are the biggest single overhead for an organisation. And when times are tight, downsizing is often the first tactic employed to reduce costs. While it is important to review staffing levels and ensure your cohort of permanent employees is affordable and appropriate relative to your strategic objectives and available resources, there are other solutions to meeting business needs that are worth exploring.
The choice does not have to be one of either hiring additional headcount or placing more strain on the existing team. There are some tasks and activities that are ideally suited to the use of contractors or freelancers. How can using professional contractors benefit your business?
Using contractors is very cost-effective. You pay for a specified set of deliverables in a set time frame. When the project is complete, you don’t have to continue to carry the cost of the employee. You also don’t have the “social costs” attached to employing a permanent employee (although this may vary depending on how the contract is structured). Generally, you don’t pay sick leave or holidays; and you don’t contribute to pension or medical aid costs. These are the responsibility of the contractor. For this reason, businesses new to outsourcing may perceive contractors as expensive, compared to the equivalent hourly or daily rate of employees. But it’s important to remember that contractors have set their tariff at a level that includes those benefits employed workers enjoy as part of their salary. Once you realise you are paying for results and not paying someone to go on holiday, contractors’ rates seem fair.
Access to scarce skills
South Africa suffers from the paradox of high unemployment and skills shortages. Training/upskilling is an important part of both national and organisational strategies. But in the short term you may find yourself in need of a specific skill that is in short supply. Using a contractor or freelancer can be a way to access talent that is in high demand and hard to find. It may not be possible to hire the skills you need on a full-time basis, either because they are not available in your locality or because those workers don’t want to be permanently employed by any one organisation; they have chosen the professional contractor model because they know their skills are in demand and they prefer the contracting lifestyle.
Outsourcing high-skilled activities can give you access to a much wider pool of workers; the person you need may be in another province or even another country. Depending on the nature of the task, they may temporarily relocate to work on your project if hands-on resource is needed (contractors tend to be highly mobile), or they may work remotely. Jobs like coding, writing, graphic design, strategy development, etc. can be done off-site. Modern technologies like Skype and video conferencing allow for virtual face-to-face contact; and cloud-based, file-sharing, collaboration and storage platforms like Box facilitate secure data transmission and content management, reducing the risk associated with conventional email. So the right person for your job may be based in another part of the world.
Specialist skills needed temporarily
Or, the person you need may live around the corner…but the project calls for a specialist skill for only one discrete activity out of the whole project plan. Perhaps a crisis has arisen and you need an expert to help you through it or meet a tight deadline. You don’t want to use a supplier; you want a closer relationship with more control. Using a contractor on a case-by-case basis gives you access to specialised knowledge when you need it, without the cost of having that knowledge on hand when you don’t need it.
Furthermore, the specialist can hit the ground running. Your business is not required to develop these skills in-house, which can be costly, time-consuming, and inefficient if the skills are not needed regularly.
Is the nature of your business seasonal or variable? Many businesses hire temporary low-skilled staff at Christmas to fulfil orders, make deliveries, etc. There may also be a role for more highly skilled temporary workers at peak times, such as tax season or regular systems upgrades. If variable cash flow is an issue, outsourcing gives you the flexibility to refrain from using contractors’ services when times are lean and increase resources and tackle new activities when cash is plentiful. Having a professional resource available to complete a specific task or project in a set amount of time enables your business to scale up or down in terms of cost, reducing the impact on the budget.
Many organisations appreciate the neutrality of contractors. A freelancer or contractor is able to concentrate on the job at hand without having internal company politics cloud their judgment and impede their progress. This task focus means they get the job done in the most efficient and effective way possible. Because contractors are outside of the permanent structure of the organisation they can sometimes feel a bit isolated, although most accept this as the nature of being an professional contractor and are not unduly distressed by it. However, they do appreciate being included in meetings that directly impact their work and value the occasional invitation to social events. If you bear this in mind as an employer, you will reap the benefits of an unencumbered yet engaged worker when you work with a contractor.
Tips for making it work
And this brings us to our final point: professional contractors are a valuable resource, but they are a human resource. Treat them like a treasured asset, not a commodity. Invest in the relationship, and it will pay you dividends in the long run. Having someone who is familiar with your business, even if they don’t work for you full-time, allows you to trust sensitive material to them and know your confidentiality will be respected and the nuances of your unique circumstances understood. You won’t have to explain your requirements over and over again.
But it is important to give clear instructions, even where the freelancer or contractor has a good grasp of your organisation. You may have moved in a new direction since their last assignment with you. If the relationship is current, it is still critical to communicate the deliverables, expectations, anticipated workflow and timelines for each project. Even contractors used to working independently need to know what is expected of them, in order to deliver the best possible results. Unclear direction will create frustration on both sides and may make the project more expensive, due to wasted time and rework.
Lastly, because your cherished freelancer is just that – freelance – they may not be available the minute you need them. You can get round this by retaining them for a certain number of hours per month, but if that arrangement is not appropriate for your requirements, for example you have occasional projects rather than continuous needs, it’s a good idea to have a small pool of resources you can call on, so that if your first choice is not available you have an alternative and are not left in the lurch.
What are you waiting for?
If you’ve never used an professional contractor or freelancer, we hope we’ve given you food for thought. Look at the gaps in your business and see where a contractor could help. Highveld has been helping clients reap the benefits of using contractors for 25 years. We provide a full contractor management service and take care of all the administration, leaving you free to focus on your business. For more information contact Highveld on 012 367 5600 or firstname.lastname@example.org.
Self-employment brings with it tremendous freedom. No longer are you beholden to an employer who dictates when you can take your holiday, how much you can earn, what your conditions of employment are. Independent contracting is just that…independent. You may be based with one particular employer for a period of time – but when your contract ends you can move on to a new opportunity. You are hired for your skills and your expertise and you manage your product – you!
But being your own boss also means no regular salary cheque. It means no paid holiday, no paid sick leave. So how can you get the best of both worlds – the freedom of independent contracting and the financial security of permanent employment? The answer is you can’t – not completely. Self-employment can be more lucrative than employment but it will never be as secure. However, there are ways to manage your finances to create as much stability as possible. Let’s look at some techniques that may help you to achieve financial control.
In the short term
Day to day and month to month you need to manage your income and your expenditure. This is not unique to self-employment but becomes much more critical when income is not predictable or guaranteed. Unless you are lucky enough to secure a long-term contract, and then another long-term contract, your income will be sporadic. If you have been contracting for some time, it should be easy to work out your average income. If you are just starting out, you will need to estimate it. Be conservative! Then, in the months when your earnings exceed your estimated (or actual) average, put the surplus into a savings account. Make sure this savings account is dedicated to this purpose – give it a name. Some accountants like to call it an “overhead account”. As you build up reserves in your overhead account, you’ll have funds to pay your monthly “salary” should you experience a period of reduced or (heaven forbid) zero earnings.
Because your income will fluctuate, when you budget for tax, retirement and other saving, it’s best to think in terms of percentages rather than fixed amounts. After all, tax is calculated as a percentage of income. So each month take a proportion of your income and allot it to three pots: tax, retirement and emergency savings. The tax proportion will generally be accurate for the reason stated, and while you may prefer to put, for example, R10,000 aside each month for retirement, it may not always be achievable. Working out a percentage you can manage means you will always be saving something for the future and still have enough to live on today. The same goes for emergency savings, which can be put in your overhead account. You want to avoid at all costs being lumbered with a tax bill you cannot afford, so get in the habit of filling these pots now. And in good months, if you work on a percentage basis, you’ll be putting away extra and building up reserves, both for the short term and the long term.
Don’t underestimate them! Many small businesses fail because of inadequate cash flow. As a contractor you shouldn’t have high expenses; after all, your commodity is your talent and experience. But when you build your spending plan, don’t forget expenses such as childcare, insurance, transport to and from sites, any equipment you provide (such as software specific to your area of expertise), etc. It is always the unexpected outgoings that catch us out, so try to anticipate everything. Then, if you don’t spend as much as you budgeted, you’ll be ahead.
In the long term
If you’re starting out, or if you’ve been contracting for a while but not yet done so, take a look at the employee benefits you previously enjoyed courtesy of your employer and consider how you will replace them. You will need to think about income protection, medical aid, life cover, disability and critical illness insurance, etc. There are many products on the market and it can be difficult to work out the most suitable policies for your circumstances. A few hours with a good financial adviser can be time and money well spent.
Then there is your pension. Perhaps you belonged to a company pension or provident scheme where your employer made contributions on your behalf, or you contributed directly from your pre-tax salary so you didn’t have to give it any thought. Retirement planning is now your responsibility and yours alone. Ironically, though we don’t all suffer injury or disability but we all get old, self-employed people often place a higher priority on income protection than on saving for retirement. This may be because retirement seems a long way off, but injury can happen at any time. While it may be tempting to prioritise today’s lifestyle over tomorrow’s, delaying or avoiding saving for retirement will have very real and unfortunate consequences in years to come.
A financial adviser will look at all your financial planning needs – protection and savings – and help you work out a plan that balances these needs with what’s affordable for you.
The good news
There are some advantages to being self-employed. You pay provisional tax twice a year. Hopefully you are putting money aside for it each month. There is nothing wrong with putting that money to work for you while you wait to pay SARS. Many banks have 32-day notice accounts paying a reasonable interest rate. Since you know in advance the dates on which you will pay your provisional tax, a 32-day notice account is a practical vehicle in which to store your tax money and put it to work for you at the same time. You won’t get rich, but every little bit helps. You can use the interest to either reduce your own liability or pay yourself a little bonus.
Highveld can help
Contracting holds many rewards for the entrepreneurial spirit, but it can be lonely. A professional contractor management service like Highveld provides a supportive network for contractors and can help you maximise your earning potential. Contracting through Highveld also gives you access to a range of benefits that may not otherwise be available to you, such as travel, insurance and training courses.
To get the most from your lifestyle choice as an independent contractor, contact Highveld on 012 367 5600 or email@example.com.
They say the grass is always greener on the other side. If you are employed in a job that is not 100% fulfilling, you may look at friends who are consultants or contractors and envy their independence and freedom. Or you may be a contractor missing the security of a regular salary and paid leave. Which is the better option?
There is no right answer. The correct choice for you will depend on your career and the opportunities within it, your personal circumstances, your attitude to risk and your personality – are you calm and able to deal with the unpredictable or does uncertainty make you anxious? We are all different, and you need to consider all angles – not just the financial one – when considering the path of the independent contractor.
Be an entrepreneur, not a temp
Contracting is not a temporary solution. It is a conscious decision to change your career to a completely different employment model, that of an independent entrepreneur. It is a lifestyle choice, not just an alternative work option to get you over an obstacle such as retrenchment or an unsatisfactory employment situation.
When you’re up, you’re up
As a contractor you are your own boss. You are running your own business, even if you turn up in someone else’s office everyday. The product your business sells is your time, skill and expertise. So when it all goes right, the success is yours and yours alone, not that of a team, and can give you quite a high. Equally, you must take responsibility for things that go wrong. There is no one to blame for blunders but yourself. Do you have the resilience to learn from your mistakes and move forward, especially if the error has cost you a contract? Can you tolerate – both financially and emotionally – the loss of income that may result? If you prefer collaboration and enjoy contributing to a team effort, as well as having the support of colleagues when projects go off the rails, then you may not be suited to independent contracting.
Are you motivated?
What motivates you? Do you need the structure of a job description and clear objectives? Do you respond to the encouraging words of a boss or colleagues? Or are you a self-starter who finds motivation in achieving results? Are you able to pick yourself up after a blow? Can you perform at your best every day, even when you don’t feel like it? Permanent employees inevitably have days of minimal productivity; no one is at their peak every day. Salary is paid regardless. But expectations of contractors are higher. You are paid for results, not for attendance. Your client is paying a premium for your talent and expects you to deliver top performance whenever you are on their service.
Neither style is better than the other. We all respond to different motivators and it’s important to recognise what yours are, as you consider the factors that will ultimately determine your choice.
The legal and financial stuff
So you’ve made the decision to become a contractor. Even then, it’s not that simple. SARS has quite strict conditions that must be met to ensure a permanent employee is not disguised as a contractor. It is very important that you are correctly classified so that you – and potentially your client employer – are not hit with hefty penalties.
Historically, the preferred option among contractors was to set up a company. However, current tax legislation requires quite a few boxes to be ticked in order to go this route. An easier option is to engage the services of a contractor management company, such as Highveld, which, for a fee, will handle all the administration for you.
Whether you opt to trade as a company or a sole trader, you will need a good accountant. Attempting to handle your own books is a false economy; an accountant skilled in tax and bookkeeping for small business and the self-employed will help you take advantage of all the deductions you are entitled to and can save you money in the long run. You concentrate on meeting your clients’ technical needs and let a specialist SMME accountant take care of the other aspects of running your contracting business. Most importantly you will avoid any late tax penalties and other errors of omission.
Replacing employment benefits
As an employee you may have enjoyed access to an in-house medical aid scheme, pension or provident fund, and other benefits. It is important to replace these with private plans. When your income fluctuates, it can be daunting to commit to regular large expenditures every month; but it is critical to build them into your budget and make sure you have the cover you and your family need. Have a discussion with a financial planning adviser and thoroughly assess your savings and insurance needs. This may include income protection cover in case you are unable to work.
We can help!
Highveld and Rosstone Consulting can help you establish yourself as a professional contractor. Highveld provides end-to-end contracting and financial solutions that allow you to concentrate on marketing your specialist skills while we take care of financial, tax and labour services. We do more than ensure your compliance with tax and labour legislation, we make sure you maximise your earning potential and simplify your administrative burden. We can also give you access to a range of ancillary services tailored to the needs of contractors, such as travel, short-term insurance, wellness and more.
Rosstone Consulting has been providing expert tax and accounting services to individuals and small businesses for 25 years and can help you manage the business of your business. We also provide wealth management and financial planning services to give you expert advice on insurance and long-term savings products.
If you’d like to have a no-obligation conversation about your prospects as a contractor and your personal earning potential, contact Highveld on 012 367 5600 or firstname.lastname@example.org. We’ll give it to you straight.