New gig sold as outside IR35 - how to make sure this is the case ?

[jamesbrown]

"I can confirm that "XX company" (so his company) is responsible for determining the IR35 status. Our agreement with "End Client" is to supply consultancy services, and we meet all IR35 obligations."

There isn't really a facepalm big enough for this. It's reminiscent of the language you get from scheme promoters . Your agent wouldn't understand IR35 if the whole of ITEPA were tattooed on their face. As to how much you care about this, that's your call, but you're about to enter into a contract with a bunch of jokers.

Anyone knows how SDS should look like exactly?

It should give a status determination and provide reasons for the determination, sufficient to demonstrate reasonable care.

(c) If I understood correctly the rules, (a) seems wrong as should be done by end client and not the agency unless this is fully contracted out.

Sure it's wrong. And the problem is that you (now) know it's wrong, which is a tough spot to be in later on.

(d) If fully contracted out it means end client becomes the agency but as the agency is small he should not have provided me with a SDS report so it seems also wrong. Unless what he provided is not a solid SDS hence my question above.

You're either confused or accidently used the wrong word (agency). If it's a fully contracted out service, then the consultancy is the end client (and Fee Payer) and their size under the CA 2006 determines whether the engagement falls within Chapter 10 (not small, SDS required) or Chapter 8 (small, no SDS).

[jamesbrown]

Going back to this as my understanding is now much better.

For (1) I will be working partly at client site and my home office. I might agree to go 2 or 3 days a week at client side depending on the needs and client update requirements. I guess I should still say (1) = yes as I am going to go often there. right?

Regarding "fully outsourced service" where is this usually mentioned? Contract or assignment schedule ?

I'm not really sure what you're asking.

Forget about this being a managed service, it isn't. Read ESM 10010 carefully, as you don't seem to have understood/internalised it. This is 100% a labour supply from the agent to the end client and the end client should provide the SDS, timely and with reasonable care. Sure, you can forget about this and assume that the supply chain above you will be liable for any mistakes later on, and that may be true, but it isn't a risk I would personally accept (but then I wouldn't accept work under Chapter 10, fullstop). YMMV. But I do think you have all of the information (from us) that you need now and it's time for you to make a decision.

[philgo]

Dear, It's really a thread !!! you like giving lessons and probably forgot that one day you did not have a clue either! Unfortunate for an expert.

What a car crash this thread is turning out to be... but not unsurprising.
You've completely misunderstood what he's asking. Further evidence in the next comment as well. He wasn't talking about travel and attendance on site, he's talking about your model of engagement which will differ between someone just making up a body in a clients team where your working colleagues will be the client staff of if you are part of a team delivering to a client where the consultancy bods are your work colleagues and you interact with the client to deliver.

If you say so..... as your surely also are in his head! I'm not talking about travel or attendance either...

How can you not know this? This is your job to deliver services to clients so why do you not understand the different ways you do this? Did they not tell you what they do at interview, did you not ask them if they didn't? How can you take a job and try and sort through the IR35 mire when you don't even know what you are in the chain?

It starts making sense now. IR35 is about being in business in your own right, if you can't understand your business then trying to unravel IR35 is going to be impossible.

It would have been more useful to explain it simply rather than blababa about my lack of knowledge.

Again, how do you not have a clue what size your clients are? Granted when it comes to small consultancies it can be a bit border line but any client using a decent size consultancy is unlikely to be small. The definition on the HMRC website is very clear.

Did you not research the consultancy and client when you found out who they were and probably know this already?

I already did the check on Company house and I have my idea so not sure why you are scratching your hairs here.

Honestly this is very frustrating. This is contracting 101, I mean super basic. It's just tick box IR35 like I mentioned before.

Go umbrella until you understand the basics. Do the first 3 months and then just switch to LTD when you are ready. Easy enough to do at renewal time. You're making a right pigs ear of this.

Seat back and relax !
I guess if it was so easy when I started this post maybe you could have offered to help by providing logical steps to follow? That would be useful for newbies don't you think ?

What do you mean you don't 'feel' they do? What makes you feel that? I'd be extremely surprised to say the least if they don't bearing in mind the total lack of outside gigs around. Pretty dumb agency model if they don't want to work with inside contractors and/or umbrellas. Also looking at this dogs dinner it doesn't appear they know much about IR35 either so can't believe they are the unicorn agency that can survive on outside gigs only.

And 'compliant' umbrella. I'll bet people on this thread sucked air through their teeth when the read that? Compliant with what? They have QC and HMRC approval? Their scheme is compliant UK tax legislation? Maybe you've just picked the wrong word but we've got a lot of people on here that have been sold 'compliant' schemes and are near suicidal in some cases once it's unraveled. I might have misread this one I'll admit but I think it's right to check what you mean by compliant. Even if they are legit are they stealing your holiday pay or had your information leaked? There aren't many good umbrellas around. Just name them and we'll tell you if they are OK. Better still go with Clarity Umbrella if you can.

Again why such reaction ! Meaning is just to try and work with a competent umbrella....pointless. I was working with Workwell and their service was fine.

[philgo]

I don't think so. I think they've just filled it out on your behalf and are paying lipservice to the whole process. You mention below they originally said it was you which I'll bet they did say. We've seen that plenty of times. I just can't understand how they can do this. Very few contractors know what the three pillars are let alone the difference between fettered and unfettered substitution and even if they did they don't know if the client will allow it at all.

Finally we agreed on something! I also think they did it on my behalf. I even think that this is a self assessment status not a SDS. Only option I see is that they don't understand what they do or they are trying to push me under the train as well as the end client but most of the risk is for myself.

Correct. That chance of it reflecting most clients requirements are slim to nil. I'll bet they've sold this service to clients who are struggling to get their heads around it and do it on their behalf which is bad for the client as well.

Surely, again agreed

I mentioned this in my previous reply. It's very little to do with WHERE it's done but WHO FOR and HOW.

Third time in a row, agreed!

As I say I bet you heard right but because you've been trying to get to the bottom of all this they've just gone ahead and done it.

Indeed I played, asked and got the report. So he probably went ahead to close the topic.

Guessing an important piece of tax legislation based on some dumb ass agency carry on doesn't make sense to me let alone the rest of it. But no, it doesn't make sense.

Indeed not trusting the agent anymore.

No, location has next to nothing to do with IR35. Many legitimate businesses operate solely on clients premises.

Fine

[philgo]

It should give a status determination and provide reasons for the determination, sufficient to demonstrate reasonable care.

No reason is given in the doc he shared... Just says OUT based on info provided by the agent + show 12 questions answered by yes/no.
Really started to think that he shared a self assessment status doc with me as he had mentioned the first time...

Sure it's wrong. And the problem is that you (now) know it's wrong, which is a tough spot to be in later on.

Indeed...might need to ask to get this IN with Umbrella or walk away.

You're either confused or accidently used the wrong word (agency). If it's a fully contracted out service, then the consultancy is the end client (and Fee Payer) and their size under the CA 2006 determines whether the engagement falls within Chapter 10 (not small, SDS required) or Chapter 8 (small, no SDS).

[/QUOTE]
I think I do not get the principle of contracted out service...It might be a language issue. Can you explain based on my case how that would work please ?
Looking at the contract I got sent there is my LTD being the consultancy, the agency and the end client.

[philgo]

I'm not really sure what you're asking.

Forget about this being a managed service, it isn't. Read ESM 10010 carefully, as you don't seem to have understood/internalised it. This is 100% a labour supply from the agent to the end client and the end client should provide the SDS, timely and with reasonable care. Sure, you can forget about this and assume that the supply chain above you will be liable for any mistakes later on, and that may be true, but it isn't a risk I would personally accept (but then I wouldn't accept work under Chapter 10, fullstop). YMMV. But I do think you have all of the information (from us) that you need now and it's time for you to make a decision.

I was unclear indeed.

Originally posted by jamesbrown View Post
It's fairly straightforward:

1. Are you working on an end client site and/or interacting with end client staff regularly (client being the entity that commissioned the service, not the consultancy/agency)?
2. Is the end client a medium or large company according to the CA 2006?

If your answer to both of these questions is "yes", then the contract falls under Chapter 10 and you must insist on an SDS from the end client (via the agent/consultancy). You should also check the contract carefully for claw-back clauses, which may work, in principle. This has nothing to do with overriding statute law. If your answer to (1) is "no", then it may be a fully outsourced service and you should answer (2) with respect to the consultancy, which is then the "end client" in your chain. If the answer to (2) is "no", then it's Chapter 8 (aka "old IR35"), else Chapter 10.

The only real complexity here is whether it is truly an outsourced service if the answer to (1) is "no". In most cases, and I suspect in your case, the answer to (1) is clearly "yes", so there is really no complexity.

I guess I was trying to double check question 1 but I (now) understand that in my case it will be always a yes as I need to interact with the client staff regularly on site or remote from home office to accomplish this assignment.

I guess only exception is if this is contracted out but I do not understand this case as discussed.

[northernladuk]

Go umbrella. The lack of agency knowledge is a risk and your lack of knowledge, particularly the stuff you don't know you don't know is compounding that risk.

Do three months brolly, swap to LTD at next renewal when you are absolutely sure the situation and away you go.

[northernladuk]

Again why such reaction ! Meaning is just to try and work with a competent umbrella....pointless. I was working with Workwell and their service was fine.

Workwell used to be JSA and it's confirmed they used steal their customers holiday pay.

https://forums.contractoruk.com/umbr...liday-pay.html

[philgo]

Go umbrella. The lack of agency knowledge is a risk and your lack of knowledge, particularly the stuff you don't know you don't know is compounding that risk.

Do three months brolly, swap to LTD at next renewal when you are absolutely sure the situation and away you go.

I would agree with this outcome, too many red flags.
However I have a call with agent today so will ask questions about process he is using in regards of IR35 for this contract.

[philgo]

Workwell used to be JSA and it's confirmed they used steal their customers holiday pay.

https://forums.contractoruk.com/umbr...liday-pay.html

Yes I knew that and they are not the only one apparently.
What's your shortlist of preferred Umbrellas ?