IR35: Planning for April 2021 – should I stay or should I go?

[sim2kuk]

The fact you use words like manager makes me think you should be looking at that fintech.

I haven’t had a manager for 11 years now... Just clients...

It depends what work you're doing I guess. I am doing work for a company on a project, and as such I will end up reporting into a Project Manager on progress.

[dx4100]

The fact you use words like manager makes me think you should be looking at that fintech.

I haven’t had a manager for 11 years now... Just clients...

[sim2kuk]

The excluded from IR35 is one of the ones I don't think you'll get. Wording isn't the best either. It's subject to IR35 now as well as after. You mean from a determination ahead of April.

The last one as well. If its similar it's similar. I doubt the client will start buggering around to make it look like something it isn't either. Puts the risk back on them.

But you never know.

I mean from an IR35 determination full stop. As the role will no longer exist when April comes around (if they agree), they have no need to determine it inside or out; I do.

The similarity thing is a difficult one - I'm not sure how to deal with that. There is of course every chance that as the role is different (differentiated by name and description) that HMRC wouldn't even bother with that - it's hardly low hanging fruit if it's that difficult to prove, and I'd fight it. The chances and indications are that they will determine everything outside, I'm just trying to cover myself best I can.

Otherwise I've got an interview tomorrow for a Perm job with a Fintech, so I'll just bugger off and get paid less again, c'est la vie.

[northernladuk]

The excluded from IR35 is one of the ones I don't think you'll get. Wording isn't the best either. It's subject to IR35 now as well as after. You mean from a determination ahead of April.

The last one as well. If its similar it's similar. I doubt the client will start buggering around to make it look like something it isn't either. Puts the risk back on them.

But you never know.

[sim2kuk]

Seems fair enough but you are asking for a number of things that just won't happen so I hope you aren't expecting a clear resolution to this.

You can but try though.

Yep, I know, I've just got to set my stall out best I can and work from there.

From the chat I had, I think they may be willing to do this part:


Role must be excluded from an IR35 Determination

And;

Last payment for role to the Agency must not pass 5th April 2020

And;

If similar role is still needed, a new role with a different title and deliverables needs to be produced so that it is not the same as the role that has lapsed.

They have tried to keep me in a number of ways already, so here's hoping they're happy to go that bit further.

[northernladuk]

Seems fair enough but you are asking for a number of things that just won't happen so I hope you aren't expecting a clear resolution to this.

You can but try though.

[sim2kuk]

So an update on this...

I received my contract this morning from the agency, asking me to sign it. I sent back the following email with the Resourcer and new Manager copied (I have changed company and people names in here):


With time getting towards the IR35 deadline on April 5th 2020, there are a few things that both myself and the Client need to do to protect ourselves from any HMRC issues before I can sign this contract.

Firstly, I have sent the contract through to my IR35 insurance supplier (QDOS), to confirm that the contract is, in their eyes, IR35 compliant, and doesn’t invalidate the insurance I have with them. This should have a fairly quick turnaround and I hope to hear back by the end of the week.

Secondly, I need a determination from the Client to confirm that this role (Role name here), will never be, at any point, judged as Inside IR35, whether I am in the role or not. The reason for this is that I could be heavily penalised – even if I am no longer at the company when the determination happens. Derek – I don’t know how we get this determination done, or guaranteed, but if there is any chance that a payment for this role (with myself in it or not) goes beyond the 5th April, then there will be liability potentially from both sides (Income Tax from myself, Employers NI from the Client) if at any point the role is judged as Inside IR35.

Thirdly, this contract needs to be done as a purely new contract and not an extension, locked to the specific role (Role Name Here). An extension would mean that any determination on IR35 to inside could also be traced back through to my previous contracts at the Client, which would mean a huge amount of liability from my side.

I received the following reply from the Agency:

Thank you for emailing.

I do appreciate your concerns around IR35, and at this stage the Agency are working with the Client to consider their approach ahead of April next year. We anticipate communication will go out later this year to contractors.

Your extension would run up until January 2020, with the legislation taking effect in April 2020, therefore we would progress as normal at this point.

To which I replied:

This issue is around if that role, not the contract, will exist into 2020. If the role is still there then the determination needs to be made. Contracts are irrelevant to the way the determination works.

For example, if the role runs from now until June and is deemed in late March to be inside IR35, even if I left in January the whole role, since inception, would be implicated as Inside IR35, and HMRC can request details of all contractors that have served under that role and move them all within IR35, hence leaving me with a large tax bill, and the Client with an Employers NI bill.



I have since spoken to Derek, the internal resourcer, and explained what I need, which I think I can sum up as the below:



I need one of the following:

Role is determined as Inside or Outside IR35 before contract is signed

Or;

Role must be excluded from an IR35 Determination

And;

Last payment for role to the Agency must not pass 5th April 2020

And;

If similar role is still needed, a new role with a different title and deliverables needs to be produced so that it is not the same as the role that has lapsed.




Of course, I'm sure I'm going to be told I'm understanding this wrong, but does this make sense?

[northernladuk]

There is exactly that which is why CoAs aren't mentioned very much and are very difficult to get from the right person.

[zerosum]

What about the tactic of getting a working practices questionnaire (I'm thinking of Qdos' one) freshly signed by the end-client close to Dec 2019?

This seems like a reasonable litmus test for the actual determinations they may make.

Although I suppose there's the possibility that one manager signs, and then a macro-company decision that they're declaring everyone inside blows everything up...

[Paralytic]

Oh you are one of THOSE posters

Yeah, we can all play the pedantic game, you played it well

You're right i am a pedant, but there was a serious point behind this. The risk between staying with a client till, say, Feb 2020 where the client have said they will not make a determination, and one who has made an inside determination or may make an inside determination before that date, is quite distinct.