Collecting "Minor" IR35 Pointers

[Lance]

Rather, (lack of) D&C is arguably the most powerful and readily demonstrated, because it is incredibly broad in scope (what, when, where, how) and most closely approximates actual working practices, which trump any contract clauses.

Isn't that trying to prove a negative though?

Other than working when I want and where I want it seems to me to be difficult prove no SDC. I understand that it's difficult for HMRC to prove SDC as well but I'd rather be controlling the evidence if needed rather than reacting to it.

Happy to be proven wrong (by you not HMRC) though.

[Whoknows]

But be careful as it's no one of the pillars we are talking about and as I said until you actually do this it doesn't exist as a defense. It's also complex to properly as the article suggests.

I did this, so I guess it's one to put in the armoury. Right behind QDOS cover and a list of examples of how the client had zero control over my working practices and activities.

[northernladuk]

I did this, so I guess it's one to put in the armoury. Right behind QDOS cover and a list of examples of how the client had zero control over my working practices and activities.

You did. In this contract or a previous one? IR35 is on a contract by contract basis do you could be running two in parallel and one could be inside and one outside. It looks good from a business perspective having parallel work but still they could find you inside on one. Previous subcontracting won't be very useful for investigations in to later contracts.

Sorry if I assumed incorrectly.

[jamesbrown]

Isn't that trying to prove a negative though?

Other than working when I want and where I want it seems to me to be difficult prove no SDC. I understand that it's difficult for HMRC to prove SDC as well but I'd rather be controlling the evidence if needed rather than reacting to it.

Happy to be proven wrong (by you not HMRC) though.

First, you need to dispel this talk of SDC, which has been marketed by HMRC as the "how" element of control, nothing more. The test in IR35 is D&C in its broadest sense. Until they bring forward an "SDC test", and new case law precedents are set, there is little point talking about SDC beyond what we currently understand as D&C (in the broadest sense). Next, no, it is very easy to demonstrate lack of D&C by recording information about each of the elements I mentioned. As I say, if it ever gets to tribunal, the overall picture of working practices is very important, and D&C most comprehensively captures actual working practices. As I also say, it is good to have evidence from as many other factors as possible. If you can point to instances where work has been offered and refused, that is great too, but you will note that (lack of) MoO is also negatively oriented. Likewise, if you can show evidence of an actual substitution, that is great, although you'll note that the Right of substitution is sufficient, if it can be proven. In most cases, it will be easier to evidence lack of D&C than lack of MoO or RoS, because lack of D&C is something that happens day-to-day.