The HMRC online test for IR35

[jamesbrown]

Like I said, if the Government tried to implement private sector IR35 akin to the public sector in a Finance Bill, it would fall to MP's to vote it down not the HoL. A small number of conservative MP's would have to rebel.

I dont believe the Government would try and push private sector IR35 through this Parliament. Each to their own.

It wouldn't get to a vote, that's the job of the whips (voting down a supply bill is effectively a vote of no confidence, hence "confidence and supply"). It would get dropped way before that, as with the Class 4 NICs. If it appears in the Autumn Budget, you can be reasonably confident that it was sounded out beforehand, esp. after the last debacle with C4 NICs (reasonably confident ). As to whether they will, your guess is as good as mine, but most folks in the industry think it's coming at some point, for what those opinions are worth. Jim Harra was effectively making the case in CIPD earlier this month. Even if they do, how the private sector reacts is another question...

[ChimpMaster]

Can't see it being forced upon the private sector just yet, but have no doubts the government is desperate for funds and will push as far as they can.

In the meantime, make sure you build very good relationships with your clients, so that you can help them with CEST-like queries when the time comes

[sal]

Can't see it being forced upon the private sector just yet, but have no doubts the government is desperate for funds and will push as far as they can.

In the meantime, make sure you build very good relationships with your clients, so that you can help them with CEST-like queries when the time comes

If or when it gets pushed to the private sector, this will shift the decision to the ClientCo. At which point all the encouragement they are going to need is the hit on their bottom line or work force if they put you inside. Just like any sane PSB this April, they will change some wording in the contract, some of it will filter down to actual working practices, some of it won't. In any case they will bank on having IR35 investigation insurance or good legal team or whatever, which will be much cheaper than increasing the rates, or risking millions in delayed projects.

[Snarf]

The sub thing really ****s me off. When I hire my builder, I expect him to be doing the majority of the work. If he calls me and says "I'm going to be ill, do you mind if I send my mate Dave round" and I say "Actually, I'd rather wait and you do it" does this mean I now employ him?

It's a ******* joke.



This is where I'm lucky - because I'm a specialist, I get to actually wear the consultant badge most of the time.

Ahh, Yeah, if you hire "Steve Jones the builder" but if you hire "SJ Construction Limited" they could send any of their employees round to do the work...

Another way to look at it, I have a cleaner because Im quite lazy... Its been the same lady coming out for the last 2 years EXCEPT for the days where shes on holiday or ill and the company sends a different cleaner - they dont even ask - they just send someone with the right skills to clean the house.. The problem is that clients dont think like this, they dont see us as suppliers they pretty much think of us as temps..

[l35kee]

Ahh, Yeah, if you hire "Steve Jones the builder" but if you hire "SJ Construction Limited" they could send any of their employees round to do the work...

Another way to look at it, I have a cleaner because Im quite lazy... Its been the same lady coming out for the last 2 years EXCEPT for the days where shes on holiday or ill and the company sends a different cleaner - they dont even ask - they just send someone with the right skills to clean the house.. The problem is that clients dont think like this, they dont see us as suppliers they pretty much think of us as temps..

It's not quite the same though is it? The level of service sending one cleaner weeks 1-10, and another cleaner on week 11 would pretty much be the same right?

If I'm working on a project for 10 weeks, and happen to send in someone else on a Monday because I've taken a long weekend. You think the person is really gonna get anything at all done on that day?

[Fred Bloggs]

It's not quite the same though is it? The level of service sending one cleaner weeks 1-10, and another cleaner on week 11 would pretty much be the same right?

If I'm working on a project for 10 weeks, and happen to send in someone else on a Monday because I've taken a long weekend. You think the person is really gonna get anything at all done on that day?

Time is up. You're a temp who isbeing paid via a Ltd Co to reduce your tax burden. Time to cough up and face the facts. You've had a good run which should really have ended in 2000 but didn't. Largely due to the inability to see through all the problems defining what you really are then making it stick. Now, the game is up. Eh?

[SueEllen]

It's not quite the same though is it? The level of service sending one cleaner weeks 1-10, and another cleaner on week 11 would pretty much be the same right?

If I'm working on a project for 10 weeks, and happen to send in someone else on a Monday because I've taken a long weekend. You think the person is really gonna get anything at all done on that day?

Depends.

I've worked along side contractors who have subbed like that.

Others do a 2-5 day handover.

[poorautojobber]

Is anyone looking to challenge the CEST tool legally. Looks like it's built on sand one good kick and it'll all fall apart. Public sector seem to not want to take on HMRC. Case law says it's wrong so can't see why it hasn't been challenged you can't assess working practices on a one size fits all approach. I'm no programmer but it think it could come up with something better!

[northernladuk]

Not quite. You'll have to take your client to court.. Not many people willing to do that.

[Gomez]

One thing thats been overlooked here are the financial risk type questions that are asked. Providing evidence of financial risk was the difference betwen in and out on a contract that I am involved with. Like the poster says, very difficult to dodge the client being able to reject a substitute question. Financial risk does not include expenses incurred whilst staying away from home so I came up with training expenses (£3k course) and the costs incurred monthly by having to pay Crown Commercial Services a percentage of the monthly invoice value as my company won the work through one of the Digital Marketplace frameworks.

I'm not Public Sector but had a bash at this for fun just now:

https://www.tax.service.gov.uk/check...r-tax/cluster/

Of course the test has been loaded so that it's difficult to escape IR35 and, given the way the questions are specified, I imagine 90% of contractors would fail.

The substitution one is a good example of heads I win tails you lose:

If the worker's business sent someone else to do the work (a substitute) and they met all the necessary criteria, would the end client ever reject them?
(a) Yes - the end client has the right to reject a substitute for any reason, including if it would negatively impact the work
(b) No - the end client would always accept a substitute who met these criteria

Even the IPSE contract specifies that Subs can be introduced by the Consultant but "with prior written approval of the client". So this means that you would always have to answer (a) above.

Having run through a number of iterations, it seems that you have to answer 3 or 4 of the questions very specifically to escape IR35. A sure-fire win is if you can answer (b) on the Substitution question above, and better of course if you have actually subbed someone in. The questionnaire stops there: you win.

Another one is if you display that you decide how the work is done, without any input from the client. It helps if your work is specialised so that no one else at client co understands what you do.

Doing work outside the remit of your contract - without getting a new contract/agreement agreed - is a big No No.

It's equally important to be able to work to your own schedule (working hours) and not be told by the client that you'll be working specific hours. This if often difficult if you have to cover normal business hours of say 9-5.

Having the choice of where to work is a good one too.

I'm sure most of us here are clued up on IR35, Substitution and SDC. I just found it interesting to take a shot at the test and just about get through without falling foul of IR35 - and this is after, in my mind, I am way clear of it (specialised tech, work where/when I choose, no SDC...but no Sub put in yet).

Anyone else had a go?