Agency refusing to show me their end client contract for IR35 review purposes

[TheMrs]

I would like to have an IR35 contract review done as recently I picked up a new client and am using a new agency (as required by the client). I am satisfied that my contract with the agency is outside IR35, as are my working practices. I usually get a £99 contract review done by my accountant to keep on file along with an updated working practices questionnaire every time I move contract (roughly annually).

For completeness I would like to also have the contract between the Agency and the end client reviewed for IR35. I've done this in the past without issues. However in this particular case the Agent has said they would not provide me with a copy of the contract as it is "commercially sensitive". I've suggested they redact the sensitive bits (presumably around their % cut of my rate) but they are still refusing.

I'd be interested to hear if you have had this problem and if so, how did you get around it? Any accountants or IR35 bods out there think this stinks?

With thanks

[malvolio]

It's not a problem, it's called "Commercial Confidentiality". Your contract is with the agency, that's all you are entitled to see. And yes, it's annoying when the agency won't go any further, but it's how their system works.

And always remember you usually aren't dealing with an Agent with any authority, you're dealing with a drone who can't make unaccompanied decisions.

[northernladuk]

I presume you also paid £99 for the review of the upper contract? What did the reviewers say about this contract? Surely this is a commercial contract between client and agent that would have little to no bearing on your IR35 status?

[expat]

...in this particular case the Agent has said they would not provide me with a copy of the contract as it is "commercially sensitive". I've suggested they redact the sensitive bits (presumably around their % cut of my rate) but they are still refusing.

I'd be interested to hear if you have had this problem and if so, how did you get around it? Any accountants or IR35 bods out there think this stinks?

With thanks

It doesn't stink, it is normal commercial confidentiality. What stinks is that HMRC can judge your IR35 status based on something that they get to see but you don't. That comes from the fact that your IR35 status depends on that contract that you don't get to see, so that you have no way of knowing whether you are inside or not, and that is what really stinks, that you can be held responsible for something that someone else did.

Which is how they like it I suppose. In the same way as King John must have been getting along just fine without Magna Carta.

[TheFaQQer]

For completeness I would like to also have the contract between the Agency and the end client reviewed for IR35. I've done this in the past without issues.

Congratulations - make the most of those successes. I don't know anyone who has managed that before, so well done.

I'd be interested to hear if you have had this problem and if so, how did you get around it?

I didn't get around it. And nor will you.

Any accountants or IR35 bods out there think this stinks?

I am neither, but I don't think it stinks at all.

[Jessica@WhiteFieldTax]

@NLUK

The agent to client contract would have a bearing in any contested hearing. See the 2004 guidance from Presiding Special Commissioner which, notwithstanding migration to upper and lower tribunals, I believe is still current.

See para 7 7.

What documents will I need?

Relevant documents will include any written contract between the worker and the intermediary and any written contract between the intermediary and the client. If either of these contracts have been varied in writing then the documents about the variation will also be needed.

Special Commissioners issue advice on IR35 appeals :: Contractor UK

Also https://www.whitefieldtax.co.uk/web/...ontract-right/ for full text of Presiding Commisiones Statement which doesn't appear to have survived the migration to .gov.uk (quelle surprise )

@OP it's frustrating but you probably have little leverage. You could give the agent a copy of the Presiding Commissioners Statement to back up your request.

In my experience, a compromise is sometimes a letter from agency stating that the agent to client contract contains materially similar terms to the agent to PSC contract - even if they issued that incorrectly and there were discrepancies it would help the position in an IR35 dispute to show you had attempted due diligence.

[BolshieBastard]

I would like to have an IR35 contract review done as recently I picked up a new client and am using a new agency (as required by the client). I am satisfied that my contract with the agency is outside IR35, as are my working practices. I usually get a £99 contract review done by my accountant to keep on file along with an updated working practices questionnaire every time I move contract (roughly annually).

For completeness I would like to also have the contract between the Agency and the end client reviewed for IR35. I've done this in the past without issues. However in this particular case the Agent has said they would not provide me with a copy of the contract as it is "commercially sensitive". I've suggested they redact the sensitive bits (presumably around their % cut of my rate) but they are still refusing.

I'd be interested to hear if you have had this problem and if so, how did you get around it? Any accountants or IR35 bods out there think this stinks?

With thanks

Got to be a sockie.

[mudskipper]

I asked about this at an IPSE tax planning event a couple of weeks back. The guy from Abbey Tax said that normally you won't get to see the upper contract until tribunal. So I don't think it's unusual.

[TheMrs]

@NLUK

@OP it's frustrating but you probably have little leverage. You could give the agent a copy of the Presiding Commissioners Statement to back up your request.

In my experience, a compromise is sometimes a letter from agency stating that the agent to client contract contains materially similar terms to the agent to PSC contract - even if they issued that incorrectly and there were discrepancies it would help the position in an IR35 dispute to show you had attempted due diligence.

Good idea, thanks I will show them the Statement and ask for a compromise letter. I've had an email today saying basically they are satisfied it is compliant so I am already some way towards showing diligence on my part.