Early IR35 Determination for 2021...

[radish2008]

The SDS merely shows you that the client believes this contract is inside IR35 - what I don't understand is given the client's opinion is why you think it is (and has been) outside IR35.

That's not what they're saying. They're saying the next contract is inside. So they want to work with me from April 21 but will only do so on an inside basis. They're not saying anything about the current contract or previous contracts.

[eek]

That's not what they're saying. They're saying the next contract is inside. So they want to work with me from April 21 but will only do so on an inside basis. They're not saying anything about the current contract or previous contracts.

Have you had an SDS determination which says that they believe the contract is inside? If you have the April bit is a complete red herring as what it is telling you is that the client has determined the work you are doing for them is in their eyes inside. The date they start implementing it is completely irrelevant here.

If they are saying that after April they won't deal with small limited companies that is a different matter (and being honest opens a far smaller can of worms / legal issues).

[radish2008]

The date they start implementing it is completely irrelevant here

That's not true. The date they start implementing it is the date they become responsible for determining the status. Which is April 21.

I have an SDS that the client insists only affects any contract after April 2021. It doesn't apply to the current contract as that determination is mine. As NLUK said this is down to my risk and therefore until April 21 nothing has changed for me. I face the same risk I have faced for the last 13 years. As we all do.

[eek]

That's not true. The date they start implementing it is the date they become responsible for determining the status. Which is April 21.

I have an SDS that the client insists only affects any contract after April 2021. It doesn't apply to the current contract as that determination is mine. As NLUK said this is down to my risk and therefore until April 21 nothing has changed for me. I face the same risk I have faced for the last 13 years. As we all do.

But your determination may be wrong. Previously that wasn't an issue as there was no evidence that your determination was incorrect, however, now there is evidence (a 3rd party SDS) that your determination could be wrong.

Do you have a proper determination that this role is currently outside IR35 (say from QDOS) or was your previous determination based on your personal believe and viewpoint?

[radish2008]

But your determination may be wrong. Previously that wasn't an issue as there was no evidence that your determination was incorrect, however, now there is evidence (a 3rd party SDS) that your determination could be wrong.

I don't believe that's right either - what they think about my current status is irrelevant, that's my job to prove my current status and I'm happy I can. I see what you're saying, that they have based the SDS on my current working practices, but they actually haven't. Their determination post April 21 is wrong and doesn't reflect what I do currently or how I do it then. But come April 21 it doesn't matter what I think, just as it doesn't matter now what they think.

Do you have a proper determination that this role is currently outside IR35 (say from QDOS) or was your previous determination based on your personal believe and viewpoint?

Nope and yes.

[eek]

I don't believe that's right either - what they think about my current status is irrelevant, that's my job to prove my current status and I'm happy I can. I see what you're saying, that they have based the SDS on my current working practices, but they actually haven't. Their determination post April 21 is wrong and doesn't reflect what I do currently or how I do it then. But come April 21 it doesn't matter what I think, just as it doesn't matter now what they think.



Nope and yes.

So you have zero evidence to back up your determination that the role was outside and are continuing to treat it as outside regardless of the fact you now have paperwork from either your end client or a qualified 3rd party telling you that they believe the working practices are inside.

I wish you luck and that HMRC don't come calling as you have a problem and the fact you don't recognise that you have a problem probably makes it worse.

[radish2008]

So you have zero evidence to back up your determination that the role was outside and are continuing to treat it as outside regardless of the fact you now have paperwork from either your end client or a qualified 3rd party telling you that they believe the working practices are inside.

I wish you luck and that HMRC don't come calling as you have a problem and the fact you don't recognise that you have a problem probably makes it worse.

No that's not what I'm saying.

They believe the future working practices to be inside. As in post April 21. You're making a hypothetical argument that they would supply a future SDS determination that clearly relates to post April 21 as evidence to support an investigation by HMRC into current working practices now. Do you think any company would get involved in that ?

And I'm not suggesting I don't have a problem - I just don't think what you're saying make sense.

[eek]

No that's not what I'm saying.

They believe the future working practices to be inside. As in post April 21. You're making a hypothetical argument that they would supply a future SDS determination that clearly relates to post April 21 as evidence to support an investigation by HMRC into current working practices now. Do you think any company would get involved in that ?

And I'm not suggesting I don't have a problem - I just don't think what you're saying make sense.

So how do the post April 2021 working practices differ from what they are now - have they documented what they will look like so that you can compare them to what they currently are?

As you seem to be assuming that they are using hypothetical working practices that change in April 2021 while me and NLUK (among other posters) don't believe there is anything hypothetical here and that the post April 2021 working practices are 100% identical to the current working practices.

And we aren't going to agree here but I wouldn't be happy working with a client who believes I'm inside IR35 if I had been operating as if I was outside IR35. And I start from a far better position than you are in with full QDOS reviews saying I was outside.

[northernladuk]

Personally I think you are grasping at straws here and applying what you think. That's your prerogative... just some added thoughts though.

They will deem the ROLE inside. If you are doing the same ROLE you are at risk. Changing a few working practices isn't going to save you. Client says the role is inside, then it's inside. All the rest is just game playing.

My comment about when the SDS applies was a tad tongue in cheek. The client considers the role you are doing now inside so you are at high risk regardless of when it hits. You need to be thinking about action based on that right now. Not when it hits.

You might have insurance in background keeping you safe but will that insurance pay out if you knew the client was going inside 5 months early? I'd be very surprised. Insurances says you must inform them if something changes. The client admitting the role is inside is a pretty massive change.

How will HMRC know anything about your situation? Quick letter to your client GSK style, either before April, or after and everything you are assuming or thinking is going to save you will start to unravel.

Argue our points by all means, we don't really know so you are correct to do so but be delusional about the facts of the case. Not saying you are there yet but we've been here before with a poster trying to argue their view on the situation when that view doesn't stack up against the facts given.

[radish2008]

So how do the post April 2021 working practices differ from what they are now - have they documented what they will look like so that you can compare them to what they currently are?

As you seem to be assuming that they are using hypothetical working practices that change in April 2021 while me and NLUK (among other posters) don't believe there is anything hypothetical here and that the post April 2021 working practices are 100% identical to the current working practices.

And we aren't going to agree here but I wouldn't be happy working with a client who believes I'm inside IR35 if I had been operating as if I was outside IR35. And I start from a far better position than you are in with full QDOS reviews saying I was outside.

Let's hope you get an outside SDS delivered at midnight on the day your contract ends then eh ? Although if you're outside now then you'll be outside after April 2021 won't you ? If I get an outside determination from QDOS now does that indemnify me against any penalties or investigations HMRC might raise in the future ? Presumably they're not going to indemnify your clients after April 21 ?