BN66 - Round 2 (Court of Appeal)

[DonkeyRhubarb]

5 months since the CoA hearing

[Tax_shouldnt_be_taxing]

TUPE

Transfer of Undertaking (Protection of Employment) law has been around for some time (1981 I believe). Cutting to the chase, TUPE is the legislation that protects rights of employees when a company is taken over or outsourced. What is relevant about it is that contractors, agency workers and the like are specifically excluded under TUPE. Or to put it another way, treated as non-employees of a given company they "contract" into for the purpose of employment law.

Now this raises a question or two. If I am working on a 12 month IT contract for one client, whether via Ltd, Umbrella or other, then as defined by TUPE I am not an employee of the client and have no employer / employee relationship. I must therefore not be an employee. If all my income is derived from that client then it is not via employment income. So in the case of IR35 and the various "tests" used to determine if I am caught by IR35, then does it not follow that whatever the tests, TUPE defines my relationship as not employed (or in simple terms, I am self-employed).

Does that not trump any IR35 claim? I cannot see how employment legislation clearly defines me as not employed for a given contract but IR35 tries to catch me for the purposes of employers tax liabilities.

And if this is true, then surely I can never be employed under TUPE so for the purpose of all my contracts I am always self employed for the purpose of TUPE. So what gives rise to any consideration of employers tax liabilities. Who is my employer who is "liable" for this tax element?

I appreciate that if you take this to the extreme then it follows that any "business" engaging with another on a contract basis is not liable for employers tax. But we're talking about an individual here. If I was employed by a larger outfit and they were taken over, I would be covered by TUPE. But I'm not.

All I can think is that I am self employed on a contract for employment law purposes and potentially employed under IR35 for tax purposes. Surely I cannot be both...

Why do I raise this? To understand the TUPE / contractor angle in relation to IR35 and how I am legally defined for tax purposes. No expert on this, but I need to square the circle. If every contract I have is TUPE free then I am not employed so no employer to pay employers tax. If HMRC propose to define me as liable to this tax, who is my employer? Can't be me under TUPE. Hmmm.

[ASB]

Does that not trump any IR35 claim? I cannot see how employment legislation clearly defines me as not employed for a given contract but IR35 tries to catch me for the purposes of employers tax liabilities.

Because they use different definitions. Not exactly joined up, but there you go. TUPE uses a definition of worker (which is different to other pieces of legislation).

TUPE was involved in Cable & Wireless v Muscat (2006). Transcript: Cable & Wireless Plc v Muscat [2006] EWCA Civ 220 (09 March 2006)

[Ganymede]

Interesting

5 months since the CoA hearing

Yes.....seems a long time..............but look what maybe around the corner !!



Reform of the European Court of Human Rights: response to a modest proposal « UK Human Rights Blog

[Ganymede]

Don't miss this

This is a very interesting insight into the Supreme Court. (BBB I player)

Its a 'must see' Dont miss it

BBC iPlayer - The Highest Court in the Land: Justice Makers

[DonkeyRhubarb]

This is a very interesting insight into the Supreme Court. (BBB I player)

Its a 'must see' DONT MISS IT !!

BBC iPlayer - The Highest Court in the Land: Justice Makers

WHS.

It may not be your normal cup of tea as far as tv viewing goes but our eventual fate might be in the hands of these people.

[OnYourBikeGB]

WHS.

It may not be your normal cup of tea as far as tv viewing goes but our eventual fate might be in the hands of these people.

I watched the program, and while I'd rather win now, I think the Supreme Court might well be the place where we finally get justice.

[Emigre]

IOM Conference

Surely not sponsored by MontP?

http://forums.contractoruk.com/accou...man-today.html

[DonkeyRhubarb]

This case I mentioned a while back, involving HMRC, has finally had a judgment announced to be handed down next week.

Case Tracker for Civil Appeals

The hearing was back in July, so it's taken 8½ months.

If our's was to take as long then we'd looking at June/July.

[Leyther70]

Not surprisingly the link isnt working, what was the outcome of that case?