SDC and IR35

[LisaContractorUmbrella]

So I'd have to be subject to all three from my client to be denied T&S?

No, you could be subject to any one of them (or the right thereof) and you would be denied T&S

[LondonManc]

No, you could be subject to any one of them (or the right thereof) and you would be denied T&S

Thought so, you confused me for a minute. That's only for contracts inside IR35, isn't it?

[LisaContractorUmbrella]

Thought so, you confused me for a minute. That's only for contracts inside IR35, isn't it?

Sorry yes it is

[TheFaQQer]

Thought so, you confused me for a minute. That's only for contracts inside IR35, isn't it?

Yes - as long as you're not a disguised employee then you're OK as the legislation stands.

[jamesbrown]

With the T&S legislation it's 'or' not 'and'

In practice:

How can you be supervised without being directed or controlled?
How can you be directed without being supervised or controlled?
How can you be controlled without being supervised or directed?

Some of these things may be possible, in principle. For example, in principle, you could be directed without being supervised. However, this isn't a question of principle. It's an issue of how a judge interprets SDC (ultimately). In practice, they are too closely related to be evaluated independently, judges have always interpreted these elements collectively (the term SDC has been around for a long time, but even before that), and HMRC have said that they aim to follow case law (they don't have much choice without imposing a simpler test). This "or" vs. "and" debate will continue to be a non-issue in practice, IMO. I guess we'll know who was right in a few years

[WordIsBond]

Does anyone have any thoughts about how they would prove that they were not subject to SDC and that no-one in the contractual chain would have that right??? HMRC are asking for evidence with T&S but what evidence can you produce that proves something doesn't exist???

I have more than one contract with my former employer.

So, I was sitting in (to provide technical advice on a proposed project) on a management strategy meeting. They are brainstorming ideas on how they can fit their various projects into a particular timescale given the available resources.

The MD says, "Can't we just press on with project A unless/until event X happens? And if X happens, then we can just move WIB and a couple of his team onto project B."

And before I can say anything, the Director of Development says, "No, we can't do that. We don't control WIB anymore. We might be able to reach an agreement with him to do that when the time comes, but we can't count on it because we don't have that kind of control anymore, and we have to work around other commitments he might make. I suppose we could negotiate and make it worth his while to not make other commitments, if we think we are going to need him that much."

I'd say that counts as proof. But I was lucky to be in the meeting where that took place, and lucky to be working with someone in that position who gets it. I don't see how anyone going through an agency could ever prove it.

[pr1]

And before I can say anything, the Director of Development says, "No, we can't do that. We don't control WIB anymore. We might be able to reach an agreement with him to do that when the time comes, but we can't count on it because we don't have that kind of control anymore, and we have to work around other commitments he might make. I suppose we could negotiate and make it worth his while to not make other commitments, if we think we are going to need him that much."

[teapot418]

It's an issue of how a judge interprets SDC (ultimately). In practice, they are too closely related to be evaluated independently, judges have always interpreted these elements collectively (the term SDC has been around for a long time, but even before that), and HMRC have said that they aim to follow case law (they don't have much choice without imposing a simpler test).

Will case law be relevant if the ESI tool determines IR35 status? How would you ever challenge it? (Assuming the engager has to run the tool).

[TheFaQQer]

Will case law be relevant if the ESI tool determines IR35 status? How would you ever challenge it? (Assuming the engager has to run the tool).

The tool will be based on case law, so it will be relevant.

Any other cases should be added to the knowledge base once they are decided.

[teapot418]

The tool will be based on case law, so it will be relevant.

Any other cases should be added to the knowledge base once they are decided.

Or based on HMRC's interpretation of case law.

How would you ever challenge it?