Discussion
alfie2244 said:
daemon said:
Alex said:
I'm in a private contract, but if I was in a contract with a PSO and they deemed me to be inside IR35, I would insist on changes to my working practices until they agreed I was outside IR35. If they wouldn't do that, I would walk.
Thats exactly our approach. "More than happy to continue working, however only in an outside of IR35 capacity, and happy to make whatever adjustments necessary to working practices to ensure that can happen"Otherwise its Adios Amigo!
If a role was deemed outside, then thats it really - unless its retested periodically i guess.
Edited by daemon on Tuesday 21st February 14:53
daemon said:
Uncle John said:
Yep point taken, however while there is a risk, I think it's a small one. There are ever more limited resources at HMRC and they simply could not investigate every single person now deemed inside IR35 by a tool that's designed to catch 95% of people. I think they'll be popping the champagne just due to the fact they have extra revenue coming in.
I'm a cup half full kind of person, but see this particular point as a front page headline on "The Sun" or "Daily Mail" for example, designed to sensationalise the worst case scenarios.
Whilst i applaud your optimism and wish you all the best, if, out of the 24,000 contractors in PSOs at the minute, say, 10000 flip over into inside IR35 contracts - and have SIGNED to say they're inside IR35 - then if theres a potential of £30,000 per person to be recovered, theres £300 million at stake.I'm a cup half full kind of person, but see this particular point as a front page headline on "The Sun" or "Daily Mail" for example, designed to sensationalise the worst case scenarios.
If you were HMRC would you let that go, given thats simple low hanging fruit ready to be picked off?
And thats not just my personal subjective view, thats the common industry view held by Bauer & Cottrell, IR35 reviewer Qdos and contractor trade group IPSE
http://www.contractoruk.com/news/0012890ir35_inspe...
Good post - I may have to re-think my position come end of March. (Contract finishes but up for renewal)
daemon said:
alfie2244 said:
daemon said:
Alex said:
I'm in a private contract, but if I was in a contract with a PSO and they deemed me to be inside IR35, I would insist on changes to my working practices until they agreed I was outside IR35. If they wouldn't do that, I would walk.
Thats exactly our approach. "More than happy to continue working, however only in an outside of IR35 capacity, and happy to make whatever adjustments necessary to working practices to ensure that can happen"Otherwise its Adios Amigo!
If a role was deemed outside, then thats it really - unless its retested periodically i guess.
Edited by daemon on Tuesday 21st February 14:53
alfie2244 said:
I understand your thinking (I may be overthinking this myself as my paranoia switch has been activated) I wondered if there was an alert activated in HMRC towers somewhere that gets triggered if a contract stays outside IR35 for long periods of time.
Wouldn't have thought so, contract duration is irrelevant to IR35. Though HMRC might try it on as an indicator of being 'part and parcel' of the client, it's been proven to not really stand up in court. Also, how does HMRC know how long you've been in contract for unless he starts investigating and gets sight of your contract(s) - can't think what the trigger would be? It's not like you put your contract details on your tax returns.Hypothetical question -
We have some permanent staff who work in IT. Because of AN Other reason we employ an Agency temp to fill one of the vacancies. For the sake of argument let's say he works on the helpdesk. So it's normally filled by a permanent member of staff, we just haven't got around to filling the post. To all intents and purposes there's no difference between his working circumstances and a permie.
Can that person legitimately be classed as "self employed"?
We have some permanent staff who work in IT. Because of AN Other reason we employ an Agency temp to fill one of the vacancies. For the sake of argument let's say he works on the helpdesk. So it's normally filled by a permanent member of staff, we just haven't got around to filling the post. To all intents and purposes there's no difference between his working circumstances and a permie.
Can that person legitimately be classed as "self employed"?
I would assume he is an employee of the agency.
There is a test case on just such a circumstance involving a temp who ended up working for three years at one location. The company where he was working decided they needed to reduce staff levels so they started making redundancies. They also told the temp he was no longer needed. But, of course, as he wasn't their actual employee, so they would not be paying him any redundancy money.
He took them to an employment tribunal - and he won his case.
There is a test case on just such a circumstance involving a temp who ended up working for three years at one location. The company where he was working decided they needed to reduce staff levels so they started making redundancies. They also told the temp he was no longer needed. But, of course, as he wasn't their actual employee, so they would not be paying him any redundancy money.
He took them to an employment tribunal - and he won his case.
Countdown said:
Hypothetical question -
We have some permanent staff who work in IT. Because of AN Other reason we employ an Agency temp to fill one of the vacancies. For the sake of argument let's say he works on the helpdesk. So it's normally filled by a permanent member of staff, we just haven't got around to filling the post. To all intents and purposes there's no difference between his working circumstances and a permie.
Can that person legitimately be classed as "self employed"?
It's about contractual obligations, control and direction of ones own skills and the method and means of payment.We have some permanent staff who work in IT. Because of AN Other reason we employ an Agency temp to fill one of the vacancies. For the sake of argument let's say he works on the helpdesk. So it's normally filled by a permanent member of staff, we just haven't got around to filling the post. To all intents and purposes there's no difference between his working circumstances and a permie.
Can that person legitimately be classed as "self employed"?
Contracts are easy to write and often don't reflect the reality, hence they don't mean that much. I have substitution clauses and other clauses in my contracts but it can and has been argued in IR35 tribunals they don't mean much.
Control and direction is the real arguable crux, who controls and directs his work? Does he direct himself to do the jobs under his own methods and means, does he control his working hours and have the ability to work for his own interests and not those of the client (although there is a necessary link)
Does he receive payment based on tasks completed? Hours worked? A strict day rate? Does he charge for travel time? Clock in and out?
It can even come down to how people interact with the office culture and whether they get invited to the Christmas party. It's a wholly ridiculous state of affairs and the original IR35 was so badly conceived as to be next to useless and they've been f
king about with it ever since.Lot's of contractors have convinced themselves they're outside IR35 because they do a bit on the side for other clients or live away from home during the week, save up invoices and put them in irregularly - but the truth is if the HMRC came knocking and you had to stand up in court and explain yourself it'd be hit and miss for most of us.
Eric Mc said:
I would assume he is an employee of the agency.
There is a test case on just such a circumstance involving a temp who ended up working for three years at one location. The company where he was working decided they needed to reduce staff levels so they started making redundancies. They also told the temp he was no longer needed. But, of course, as he wasn't their actual employee, so they would not be paying him any redundancy money.
He took them to an employment tribunal - and he won his case.
Thanks Eric - Every day's a school day.There is a test case on just such a circumstance involving a temp who ended up working for three years at one location. The company where he was working decided they needed to reduce staff levels so they started making redundancies. They also told the temp he was no longer needed. But, of course, as he wasn't their actual employee, so they would not be paying him any redundancy money.
He took them to an employment tribunal - and he won his case.
Countdown said:
Hypothetical question -
We have some permanent staff who work in IT. Because of AN Other reason we employ an Agency temp to fill one of the vacancies. For the sake of argument let's say he works on the helpdesk. So it's normally filled by a permanent member of staff, we just haven't got around to filling the post. To all intents and purposes there's no difference between his working circumstances and a permie.
Can that person legitimately be classed as "self employed"?
Hes covering a substantive post, therefore he should be PAYE (IMHO)We have some permanent staff who work in IT. Because of AN Other reason we employ an Agency temp to fill one of the vacancies. For the sake of argument let's say he works on the helpdesk. So it's normally filled by a permanent member of staff, we just haven't got around to filling the post. To all intents and purposes there's no difference between his working circumstances and a permie.
Can that person legitimately be classed as "self employed"?
Edited by daemon on Tuesday 21st February 17:53
alfie2244 said:
All of which has little to do, if anything, with IR35 Ltd Co contracting....... 
It is if that person was operating via a PSC.We've quite a few people where i am who are covering substantive posts for extended periods but have deemed themselves - wrongly IMHO - outside of IR35.
Its THAT sort of person IR35 was designed to catch. NOT true contractors in doing a fixed piece of work with bought in skills for a period of time.
The problem is laziness by PSOs will mean they just deem those people IN, OR work on the assumption that the upcoming HMRC test is designed to be "fair"
Edited by daemon on Tuesday 21st February 17:52
sparks85 said:
I need to confirm with my accountant, but does anyone know off hand what is the specific date the new legislation kicks in - 31stMAr/1st Apr or 5th/6th April?
6th April 2017http://www.contractoruk.com/news/0012886hmrc_publi...
All payments MUST be made by that date. Even if the work was completed before 6th April, if its paid 6th April onwards its falls into the new legislation.
PSCs abandon NHS IT Project over IR35 changes....
http://www.contractoruk.com/news/0012910pscs_aband...
Expect to see many more headlines like this.
http://www.contractoruk.com/news/0012910pscs_aband...
Expect to see many more headlines like this.
Hypothetical question - the PSO I work in is cutting it very fine to decide what they're going to do and process all the contractors. They can barely find their proverbial with a map and two hands let alone assess and process new contracts where applicable for all 10k+ contract staff in 3 to 4 weeks.
Come 6th April, what happens to existing contracts if they haven't got round to determining status of contracts? Do they continue as per the contractors own assessment until the PSO assess it?
Would the PSO be able to backdate their assessment to 6th April?
Come 6th April, what happens to existing contracts if they haven't got round to determining status of contracts? Do they continue as per the contractors own assessment until the PSO assess it?
Would the PSO be able to backdate their assessment to 6th April?
sparks85 said:
Hypothetical question - the PSO I work in is cutting it very fine to decide what they're going to do and process all the contractors. They can barely find their proverbial with a map and two hands let alone assess and process new contracts where applicable for all 10k+ contract staff in 3 to 4 weeks.
Come 6th April, what happens to existing contracts if they haven't got round to determining status of contracts? Do they continue as per the contractors own assessment until the PSO assess it?
Would the PSO be able to backdate their assessment to 6th April?
They need to have the decision made by 6th April. Many are opting for a global "in"....Come 6th April, what happens to existing contracts if they haven't got round to determining status of contracts? Do they continue as per the contractors own assessment until the PSO assess it?
Would the PSO be able to backdate their assessment to 6th April?
daemon said:
sparks85 said:
Hypothetical question - the PSO I work in is cutting it very fine to decide what they're going to do and process all the contractors. They can barely find their proverbial with a map and two hands let alone assess and process new contracts where applicable for all 10k+ contract staff in 3 to 4 weeks.
Come 6th April, what happens to existing contracts if they haven't got round to determining status of contracts? Do they continue as per the contractors own assessment until the PSO assess it?
Would the PSO be able to backdate their assessment to 6th April?
They need to have the decision made by 6th April. Many are opting for a global "in"....Come 6th April, what happens to existing contracts if they haven't got round to determining status of contracts? Do they continue as per the contractors own assessment until the PSO assess it?
Would the PSO be able to backdate their assessment to 6th April?
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