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IR35 Working Practices Review and Software Code Reviews

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    #61
    Originally posted by sdyson31 View Post
    Agency has confirmed that they won't be able to amend the upper level contract as client uses the global contract template which can't be amended.

    I am certain that this contract would fail on substitution clauses as i won't be able to send someone to complete the job. It is up to agency to send someone not me. I know there are other elements in the test but substitution is a key one.

    IT contractors warned on IR35 substitution clauses :: Contractor UK
    AbbeyTax and QDos review based on your contract with the agency. The don't see the top contract.

    Why don't you just get that contract reviewed and take out the tax loss insurance.

    We can't do much about a contract we never see. Its always going to be a danger point of going via an agency most the time.

    Comment


      #62
      Originally posted by missinggreenfields View Post
      What are you going to do then?

      1) Declare inside IR35 and take the role - maybe ask for an increase now because you have nothing to lose

      2) Walk away and find something else

      3) Don't declare inside IR35, save the money and hope that either you don't get caught, or you mount a successful defence based on the other pillars of employment if there is an investigation.

      I know what I'd do in this situation.
      I'm hoping it's number 2 but I bet its not.
      'CUK forum personality of 2011 - Winner - Yes really!!!!

      Comment


        #63
        Originally posted by dx4100 View Post
        AbbeyTax and QDos review based on your contract with the agency. The don't see the top contract.

        Why don't you just get that contract reviewed and take out the tax loss insurance.

        We can't do much about a contract we never see. Its always going to be a danger point of going via an agency most the time.
        I did speak to someone in QDos this morning he mentioned both contract has to mirror otherwise even insurance won't protect you.

        I have decided to move on, rates are not negotiable.

        Comment


          #64
          Originally posted by sdyson31 View Post
          I did speak to someone in QDos this morning he mentioned both contract has to mirror otherwise even insurance won't protect you.

          I have decided to move on, rates are not negotiable.
          Bloody hell... Glad I don't use QDOS then... Speak to AbbeyTax...

          How can they say that considering you almost never see the upper contract....
          Last edited by dx4100; 26 May 2016, 12:02.

          Comment


            #65
            Originally posted by dx4100 View Post
            Bloody hell... Glad I don't use QDOS then...
            Erm.. Why? Seems pretty reasonable. The OP has posted an example of a loss due to contracts not matching so it's proven case law. Why on earth would they insure that?
            'CUK forum personality of 2011 - Winner - Yes really!!!!

            Comment


              #66
              Originally posted by northernladuk View Post
              Erm.. Why? Seems pretty reasonable. The OP has posted an example of a loss due to contracts not matching so it's proven case law. Why on earth would they insure that?
              Ok to clarify....

              If you have the upper contract to review... or you have information about the upper contract then fine. That is understandable...

              But in the majority of cases (I presume) you don't have such information... So in those cases you might lose and you still think its ok the insurance does not pay out ?

              If all I have is the lower contract, it gets passed and insurance offered... I would presume the insurance is taking that calculated risk that the upper contract might ruin everything.

              Comment


                #67
                Originally posted by sdyson31 View Post
                I have decided to move on, rates are not negotiable.
                Smart move - good luck with the search.

                Comment


                  #68
                  Originally posted by sdyson31 View Post
                  Agency has confirmed that they won't be able to amend the upper level contract as client uses the global contract template which can't be amended.

                  I am certain that this contract would fail on substitution clauses as i won't be able to send someone to complete the job. It is up to agency to send someone not me. I know there are other elements in the test but substitution is a key one.

                  IT contractors warned on IR35 substitution clauses :: Contractor UK
                  It's clear have not understood a word of what any of the other posters who have been going on about the tests for IR35 have said.

                  It is also clear you have not understood my post either.

                  You should either use an umbrella company or go back to being permanent as the concepts are not hard to understand.
                  "You’re just a bad memory who doesn’t know when to go away" JR

                  Comment


                    #69
                    Originally posted by dx4100 View Post
                    Ok to clarify....

                    If you have the upper contract to review... or you have information about the upper contract then fine. That is understandable...

                    But in the majority of cases (I presume) you don't have such information... So in those cases you might lose and you still think its ok the insurance does not pay out ?

                    If all I have is the lower contract, it gets passed and insurance offered... I would presume the insurance is taking that calculated risk that the upper contract might ruin everything.
                    I think you're right. The contractor has no right to see the upper tier contract (they can, of course, demand to see this or include clauses about consistency, refusing the lower tier contract otherwise), but HMRC most certainly does have this right. Any insurance policy (i.e. coverage for tax losses) that was contingent upon consistency between the upper and lower contracts in an agency arrangement would be pretty worthless to the contractor. This is part of the insured risk, unless someone can point me to a clause in the T&C of these various providers that says otherwise (they should all be available online). If the contractor became aware of an inconsistency, that may be different, because there will be clauses about due diligence and requirements to notify. The reality is that companies such as Qdos don't particularly fear having to pay out on a tax loss insurance policy, because it's so rare/unlikely, and it would be good publicity. That said, it would be entirely accurate to say that the upper tier contract does indeed matter w/r to IR35 status, arguably more than the lower tier contract.

                    Comment


                      #70
                      Originally posted by dx4100 View Post
                      Ok to clarify....

                      If you have the upper contract to review... or you have information about the upper contract then fine. That is understandable...

                      But in the majority of cases (I presume) you don't have such information... So in those cases you might lose and you still think its ok the insurance does not pay out ?
                      You never have the upper contract to review as legally you are not party to it so there is absolutely no reason you should be given it.

                      In the cases where I've seen parts of the upper contract I've already been in the contract and it's accidental.

                      What you can insist on is that the agent ensures that the upper contract and your contract have terms that are copied and compatible. For example if the upper contract doesn't mention WFH just working on the client site then your contract shouldn't mention that you can WFH. Then if you are allowed to WFH you need to get it recorded as an agreement between you and the client.

                      Originally posted by dx4100 View Post
                      If all I have is the lower contract, it gets passed and insurance offered... I would presume the insurance is taking that calculated risk that the upper contract might ruin everything.
                      The insurer is taking the risk that the agency are not complete liars, and both the upper contract and your contract are compatible.

                      If there is a case where the agency completely lied even after the contractor has it on record they asked the agency to confirm the contracts were compatible then organisations like ISPSE and FSB, after a long IR35 fight, would happily help you sue the agency. This is because they are membership organisations not just insurers so case law is important to them.
                      "You’re just a bad memory who doesn’t know when to go away" JR

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