Can you reclaim IR35 tax if struck down?

When you say pay “our IR 35 tax” I assume you mean pay the PAYE and NIC on the possible deemed payment? Unfortunately if you pay the deemed salary and the tax and NIC on it then there seems to be no provision for clawing back that tax and NIC if IR 35 is eventually struck down. It will merely be tax and NIC due on a salary.

If you want to retain some of the flexibility until the position of IR 35 is more certain then it seems safer to either retain surplus profits in your company (after paying such salary as you need and corporation tax on the profit) or to take the profit out as a dividend. The legislation specifically provides that you can apply to have the tax paid on a dividend offset against any liability for PAYE on a deemed payment under IR 35.

Kevin Miller