Michael Cahill (Kerry, Fianna Fail)
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148. To ask the Minister for Finance to examine issues with determining employment status (details supplied) and the implications on small builders; and if he will make a statement on the matter. [66530/25]

Simon Harris (Wicklow, Fine Gael)
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On 20th of October 2023, the Supreme Court (in a unanimous decision) delivered an important judgement on the key factors to be considered when classifying an individual’s employment status for income tax purposes. As a decision of the Irish Supreme Court, the judgement has application across all sectors, including the construction sector. Revenue, in carrying out its statutory function, is obliged to apply the judgement and has no discretion whatsoever on this matter.

The detailed judgment was delivered by Mr. Justice Brian Murray in The Revenue Commissioners v. Karshan (Midlands) Ltd. t/a Domino’s Pizza. The case concerned whether the delivery drivers were independent contractors under a “contract for service” and taxable under Schedule D of the Taxes Consolidation Act 1997, or were employees under a “contract of service”, and taxable under Schedule E of that Act (PAYE).

The judgement provides an extensive review of relevant caselaw, and succinctly summarises it through the provision of a five-step decision-making framework. The decision-making framework consists of five questions that are to be used to resolve the question of whether a contract is one of service (employee) or for service (self-employed). Under the self-assessment tax system, each business making payments to individuals is obliged to correctly determine whether individuals are employed or self-employed, based on the facts and circumstances of each relationship and payment through application of the five-step framework.

Revenue developed a detailed Tax and Duty Manual (TDM) to provide guidance in relation to the application of the judgment and to assist businesses who engage individuals to carry out work. The TDM (Part 05-01-30) was published on 21 May 2024 and is available at www.revenue.ie/en/tax-professionals/tdm/income-tax-capital-gains-tax-corporation-tax/part-05/05-01-30.pdf. It provides general guidance and commentary but cannot cover every eventuality and circumstance. The key message in the TDM is that in determining whether an individual is self-employed or an employee, the business (engaging the person) must apply the five-step framework by reference to the facts and circumstances of the individual case.

I am informed by Revenue that it has not imposed any approach, as it is the Supreme Court who has set down the conditions that need to be applied when classifying an individual’s employment status for income tax purposes. It has always been a matter for a business engaging the individual to determine whether that individual is an employee for tax purposes. Whether an individual is an employee depends on the application of the five-step framework to the facts and circumstances of the specific case.

Further, it is not necessary for an employee to work on a full-time basis for tax purposes. It was noted that an individual engaged on a part time or occasional basis may be an employee as there is no requirement for continuity of service in order to be an employee for tax purposes.

Following directly from the Supreme Court judgement in the Karshan case, Revenue announced in September 2025 that employers can correct payroll tax issues for 2024 and 2025 arising from bona-fide classification errors without having interest and penalty imposed. Employers who, acted in good faith relying on the case law and guidance available prior to the Supreme Court judgement, but who subsequently realise they misclassified employees as contractors, are encouraged to take this opportunity to regularise their tax affairs. Guidance on this disclosure opportunity is set out in Tax and Duty Manual ‘Settlement arrangement arising from Revenue v Karshan (Midlands) Ltd. trading as Domino’s Pizza which is available at www.revenue.ie/en/tax-professionals/tdm/compliance/audit-and-other-compliance-interventions/karshan-settlement-guidance/karshan-disclosure-opportunity-guidance.pdf.

Where an employer avails of this settlement opportunity, Revenue will accept liabilities for the settlement arrangement calculated as follows: Income Tax calculated at the rate of 20% on the gross amount paid to the employee during the relevant year, USC calculated based on a blended rate of 3.5% of the gross amount paid during the relevant year, PRSI (Employee and Employer contribution) must be calculated on an actual basis and records updated.

Where an employer fails to take this opportunity to review its workforce practices and make a relevant disclosure by 30 January 2026, and the liabilities from misclassification subsequently come to light, Revenue will form the view that the default has arisen from a complete failure to operate payroll taxes and will apply the relevant legislation in relation to the failure to deduct PAYE, PRSI and USC. Interest and penalties will be applied in full in line with Revenue’s Code of Practice for Revenue Compliance Interventions which is available at www.revenue.ie/en/tax-professionals/documents/code-of-practice-revenue-compliance-interventions.pdf.