HMRC win IR35 case

**Ardesco** · 16 January 2008, 13:44

Originally posted by NotAllThere View Post

Reported exclusively (so far) here.

http://forums.contractoruk.com/424259-post8.html

Keep up

**NotAllThere** · 16 January 2008, 14:27

But, in my defence, the third page of that particular thread has descended into a playground fight, and the second page has a few rather posts that are so long that you either die of old age half way through, or simply lose the will to live. So I missed oracleslave's post.

**ratewhore** · 16 January 2008, 15:01

Originally posted by NotAllThere View Post

...and the second page has a few rather posts that are so long that you either die of old age half way through, or simply lose the will to live.

Without looking I'll assume that is Denny...

**Dow Jones** · 16 January 2008, 15:04

Will they dare?

I'd like to see them bringing it on against someone working for a big client eg a big-name bank or utility and asking them to testify in court about their working practicesinstead of picking on SME ones with less legal and financial muscle. Come on Hector, let's be having you!

**Denny** · 16 January 2008, 15:43

Originally posted by ratewhore View Post

Without looking I'll assume that is Denny...

**miss marple** · 16 January 2008, 17:50

Having looked at both the HMRC Won/Lost threads and articles, it got me wondering. Dow Jones has made me wonder more.

In the 'won' case the special commissioner said the fact the chap was named on the contract was alright because the work he was doing was defence related and needed security clearance.

Has anyone working at the Cheltenham doughnut ever been investigated? How about security cleared contractors working for HMRC themselves, or the Police, or the Military?

How would HMRC cope with an investigation if the contractor turned round and said "I could tell you that but I'd have to shoot you because of the Official Secrets Act". And what if the end client said "We're not telling you that because of operational reasons". Or would HMRC just not bother to investigate that particular contractor?

Denny? Anyone?

**Denny** · 16 January 2008, 18:36

Originally posted by miss marple View Post

Having looked at both the HMRC Won/Lost threads and articles, it got me wondering. Dow Jones has made me wonder more.

In the 'won' case the special commissioner said the fact the chap was named on the contract was alright because the work he was doing was defence related and needed security clearance.

Has anyone working at the Cheltenham doughnut ever been investigated? How about security cleared contractors working for HMRC themselves, or the Police, or the Military?

How would HMRC cope with an investigation if the contractor turned round and said "I could tell you that but I'd have to shoot you because of the Official Secrets Act". And what if the end client said "We're not telling you that because of operational reasons". Or would HMRC just not bother to investigate that particular contractor?

Denny? Anyone?

I'm rather surprised that security clearance can be used as a defense warranting a named contractor for carrying out the work. After all, a sub could easily be used provided he/she too was already or was willing to be security cleared (time permitting). It is more convincing as an argument that the contractor should only work on site and not be able to take work home because of its sensitive nature.

What would be more convincing to the HMRC case is if the work was so complex to take on that it would be pretty impossible to handover to a sub in good time for the timelines to be met, making the RoS in the upper and lower terms a farce. This is particularly so if some of the work could not be carved up either to give to a sub contractor to assist on overspill during times of pressure or if some specialist skills were needed that the original contractor couldn't do themselves. After all, genuine RoS also embraces this scenario, not just a complete sub to do all the work.

**The Lone Gunman** · 16 January 2008, 19:34

Denny: Do you understand how security clearance works? Not taking the piss, just your reply seems a bit lacking.

The normal argument wth RoS is that "my" company will provide another employee or a sub contractor to the client. This is usualy on little or no notice .
My company can not get clearance for my employees, only the defence client I am working for can provide that. So I would have to know well in advance to get the sub cleared.
All this and more makes the arguments abot IR35 RoS extremely complicated as does control and location though not as you stated (see below)

Also: It has nothing to do with having to be on site. It is possible to take secure documents and hardware off site, as long as it will be kept secure. There are rules and I have taken work home. They are a lot more willing when a deadline is fast approaching. Obviously some stuff is not allowed off site, but most of you will never need to work with that kind of stuff.

**malvolio** · 16 January 2008, 20:02

What they are saying is merely an extension of the clearance requirements as stated by the Cabinet Office rules. A given role requires cleared personnel, cleared personnel have to be explicitly identified (unless you're a Home Office guard, of course) hence any contract will need to have your name in it, and any sub would similarly have to be named. However, that does not then imply a contract of service, since the naming is not germane to how you actually work, merely that you be allowed to do it. So it is entirely right to say that being named can be disregarded in IR35 terms under those circumstances.

HMRC win IR35 case