Accountant and IR35

[yorkshireman]

"As you will be IR 35 it will be necessary for you to draw a salary for March, based upon the billing less relevant expenses for February and March, rather than a director's loan."

If he based this judgement on an IR35 review of your contract then get another accountant to give you a second opinion. Intouch Accounting gave my contract a free IR35 review before I switched. I am sure the other specialists will too.

If his advice is not based on a review of your contract then I would ask for a complete refund of anything you have paid so far before you switch to a contractor accountant. If necessary threaten to complain to the Institute of Chartered Accountants.

[TheFaQQer]

If he based this judgement on an IR35 review of your contract then get another accountant to give you a second opinion. Intouch Accounting gave my contract a free IR35 review before I switched. I am sure the other specialists will too.

If his advice is not based on a review of your contract then I would ask for a complete refund of anything you have paid so far before you switch to a contractor accountant. If necessary threaten to complain to the Institute of Chartered Accountants.

Unless your accountant is a lawyer as well, I'd question the benefit of having someone unqualified look over the paperwork.

It surprises me the number of people that rely on an accountant to give them legal advice about things like this - in the same way that I wouldn't ask a lawyer what VAT rate I should be paying, I wouldn't ask my accountant for a contract review.

[Danielsjdaccountancy]

I agree, seek a second opinion. Some IR35 specialists are PCG Accredited so are qualified to form an opinion for you.

[yorkshireman]

Unless your accountant is a lawyer as well, I'd question the benefit of having someone unqualified look over the paperwork.

It surprises me the number of people that rely on an accountant to give them legal advice about things like this - in the same way that I wouldn't ask a lawyer what VAT rate I should be paying, I wouldn't ask my accountant for a contract review.

They are Chartered Accountants not solicitors. If I wanted to challenge the legal basis of IR35 in the European court I would use a solicitor. If I wanted to write a contract from scratch I would use a solicitor (although in practice I would use one of the excellent PCG model contracts instead).

I am not asking them for a general legal opinion on my contract - but on the basis of IR35 alone. The advice is based on company law and tax and its practical application in previous case law decisions, experience of prior investigations and tribunal decisions - within their specialist market.

If a specialist Chartered Accountant provides written IR35 advice based on a review of my contract, I value that significantly. They would not keep their Chartered status long if they get it wrong!

[malvolio]

They are Chartered Accountants not solicitors. If I wanted to challenge the legal basis of IR35 in the European court I would use a solicitor. If I wanted to write a contract from scratch I would use a solicitor (although in practice I would use one of the excellent PCG model contracts instead).

I am not asking them for a general legal opinion on my contract - but on the basis of IR35 alone. The advice is based on company law and tax and its practical application in previous case law decisions, experience of prior investigations and tribunal decisions - within their specialist market.

If a specialist Chartered Accountant provides written IR35 advice based on a review of my contract, I value that significantly. They would not keep their Chartered status long if they get it wrong!

Such faith, so misplaced...

Assuming they haven't got a PCG Accredited Accountant badge, they possibly aren't too hot on IR35 and its myriad ramifications. For one thing, if you have a RoS, as you say you have, and it is reasonably unfettered and the client would actually honour it in principle then any good representative will get you outside IR35 anyway. Same applies for Mutuality and D&C. The fact they are saying you are caught when you do have an RoS means either it's a sham and they know it, or they don't understand the case law. You need to find out which.

Over 98% of all IR35 cases fail. People should assume they are outside unless provably caught, and even then they need to be certain before cheerfully signing away 20% of their gross.

[Stan05]

Thanks for the guys,

I've dropped the accountant a mail asking for an explanation and stating that I believe I am outside IR35 if I'm not happy then time to move on (no money has changed hands yet)

For the record, he hasn't seen the contract - it was only signed last Thursday as I wasn't happy with all the T&C's. The thing that is most strange is that at our initial meeting we discussed the salary/dividend splits so find the whole IR35 conversation bemusing.