IR35

[pauldoherty1]

Hi

Ive been contracting via umbrella as the firm Im working for has a public sector client and was advised it had to be umbrella.

Was advised by my agency I could go limited which I did as it was now outside IR35.

My contract was independantly reviewed by qdos who advised I clearly fail. Id already been incorporated so couldnt go back

As the contract is not directly with the public sector I believe despite what the agency claims they would not be liable for anything should I fail an investigation.

Is this correct?

Im now considerably worse off as I did a silly thing and dropped my rate slightly to secure a long extension.

Whilst I would only leave a contract for very good reasons would it be reasonable in this case to get something else.

Thanks

Paul

[northernladuk]

So negotiate with the agency to get the contract changed. If you've bought the right product from QDOS they should help negotiate on your behalf. The agent should be willing to listen if their contract is such a clear fail. They will have this problem with every contractor they try take on.

Dropping your rate in return for a longer contract? The agent must be pissing himself laughing. Don't ever do this again. Your contract can be terminated immediately the true contract length is one day whatever you think it might be. You really must understand contracting better to know why this was such a bad move.

If you dropped it slightly why are you considerably worse off? You must have been happy with the drop to sign it?

What is the reasoning for you going to get something else? Because you've messed up?

Negotiate the contract to fix the issues, get IPSE+ should the worst really happen and then just get on with the gig.

[northernladuk]

P. S. Drop admin a note and get him to change your username. Not a good idea to post on here under your real name.

[Neil@Intouch]

Hi

Ive been contracting via umbrella as the firm Im working for has a public sector client and was advised it had to be umbrella.

Was advised by my agency I could go limited which I did as it was now outside IR35.

My contract was independantly reviewed by qdos who advised I clearly fail. Id already been incorporated so couldnt go back

As the contract is not directly with the public sector I believe despite what the agency claims they would not be liable for anything should I fail an investigation.

Is this correct?

Im now considerably worse off as I did a silly thing and dropped my rate slightly to secure a long extension.

Whilst I would only leave a contract for very good reasons would it be reasonable in this case to get something else.

Thanks

Paul

A complete IR35 review shouldn't be accessed on just the contract, this should also be around your working practices.

You only need to pass one of the three main tests to ensure you are outside of IR35.

1. Personal Service - if the contract requires that you must personally provide services there is a stronger suggestion towards IR35. However if you can send a substitute or subcontract some of your work that is another matter and is often considered the strongest argument against IR35, although it must be a genuine right and not merely an ability to offer a substitute.

2. Supervision, Direction and Control - this considers how, when and where the work is carried out and the degree of full autonomy over the work to be done. The greater the autonomy the more likely the contract will be seen as outside IR35. But if you are told how to do it and work, in many respects, in a controlled or supervised manner it is more indicative that IR35 is a risk.

3. Mutuality of Obligation (MOO) - this relates to the extent you are obliged to carry out any work offered to you or whether the client is obliged to offer you work outside the scope of the contract. Where those obligations are limited entirely to the work set out in the contract this is suggestive that IR35 will not apply.

[LondonManc]

NLUK and Neil have summed it up well - both posts, taken together, should give you enough guidance about the contract being inside or outside.

It's no good simply having the contract changed if working practices don't reflect the contract.
Similarly if you feel that working practices are/will be significantly different to the inside contract, get back in touch with QDOS and get a proposed set of changes together.

If you feel like the agency have stitched you up, why feel guilty about moving on?

[mudskipper]

Hi

Ive been contracting via umbrella as the firm Im working for has a public sector client and was advised it had to be umbrella.

Was advised by my agency I could go limited which I did as it was now outside IR35.

My contract was independantly reviewed by qdos who advised I clearly fail. Id already been incorporated so couldnt go back

As the contract is not directly with the public sector I believe despite what the agency claims they would not be liable for anything should I fail an investigation.

Is this correct?

Im now considerably worse off as I did a silly thing and dropped my rate slightly to secure a long extension.

Whilst I would only leave a contract for very good reasons would it be reasonable in this case to get something else.

Thanks

Paul

Your question is a bit confusing. You say you're not working directly for the public sector - are you working indirectly?

if so, for the PS, the PS client has to decide whether the engagement falls within the new regulations, and if it does, whether IR35 applies.

If they have done this, and said IR35 does not apply, then happy days - the liability is with the agent.

If the new regulations do not apply, or it is a private sector contract, then the agent cannot tell you that the contract falls outside IR35 - it is for you/yourCo to make that determination (a contract review is a good place to start).

Lots of info on the right --->

PS info here https://forums.contractoruk.com/publ...bout-ir35.html

And

IPSE's guide to IR35
IPSE's guide to IR35 in the public sector

[Hobosapien]

As above, does your contract say the client is the PS or the 'firm you are working for'?

Former means the PS client determines IR35 status and any liability of them getting it wrong lies with not you, though I think that has yet to be tested out during a HMRC investigation and subsequent court case in regards tax due and who pays it in the end.

Latter means it's up to you to get evaluated by contract review (as you have done) and try to change terms/working practices to be outside IR35 as others point out.

So depends on who the client actually is. If the contract is with the 'firm you are working for' and they are delivering a product to the PS rather than you engaging in daily activity as a 'bum on seat' with the PS then you have more leeway to try to position yourself outside IR35, which can be done even after the contract has started if you are able to adjust the actual working practices sufficiently then get another contract review done.