IR35 exempt still?

[malvolio]

The IR35 test is Direction and Control - sit at that desk and type in the contets of 40,000 survey forms by next Tuesday in English would cover it. However a professional programmer will be asked to deliver a programme that meets a given specification in a set timescale and left to get on with it. Unless you have to submit every 15 lines of code to a supervisor for checking or something, where is the Direction or Control? Therefore you are probably not caught and can defend yourself agianst anyone that says you are (or at least the Accountax's of this world can on your behalf).

Similarly, there is case law that says a substitution clause is enough, even if it is never invoked, to take you outside - if you can be replaced, you are hardly going to be offering a contract of personal service.

And then there's mutuality. If they can send you home without pay because there's nothing for you to do, or if you can take time out of the contract without being paid for it, you're outside.

It's that simple. Why anyone with any form of professional skills pays IR35 is beyond me.

[css_jay99]

[QUOTE=malvolio]And then there's mutuality. If they can send you home without pay because there's nothing for you to do, or if you can take time out of the contract without being paid for it, you're outside.QUOTE]

your view(or IR's) on taking time out cant be right bcos every contractor is allowed some time off. e.g illness/holiday. all that just happens is that he does not get paid for that day. So how can that be a test . I doubt there are contractors out there that get paid when not working

css_jay99

[The Lone Gunman]

Similarly, there is case law that says a substitution clause is enough, even if it is never invoked, to take you outside - if you can be replaced, you are hardly going to be offering a contract of personal service.

Never understood the replacement being a pointer. I know lots and lots of employees who regularly bring in replacements. I used to swap shifts with a mate when I was a shelf stacker at Asda FFS.

if you can take time out of the contract without being paid for it, you're outside.

So taking a holiday from your client site could be regarded as putting you outside IR35, well outside if you provide a replacement for the period?

[ASB]

Never understood the replacement being a pointer. I know lots and lots of employees who regularly bring in replacements. I used to swap shifts with a mate when I was a shelf stacker at Asda FFS.

So taking a holiday from your client site could be regarded as putting you outside IR35, well outside if you provide a replacement for the period?

Yes. Actual substitution will (1) kill IR35 stone dead.

(1) The problem is that the IR might just try and infer 2 contracts, one before the substitution one after. However case law states that the right to substitution is enough - problem is IR will try and get that out of the notional contract if it didn't happen. If iut did there was no requirement for personal service and you cannot be a deemed employee

[malvolio]

[QUOTE=css_jay99]

And then there's mutuality. If they can send you home without pay because there's nothing for you to do, or if you can take time out of the contract without being paid for it, you're outside.QUOTE]

your view(or IR's) on taking time out cant be right bcos every contractor is allowed some time off. e.g illness/holiday. all that just happens is that he does not get paid for that day. So how can that be a test . I doubt there are contractors out there that get paid when not working

css_jay99

Crap. Contractors don't get holiday, and don't get SSP (at least, not from their clients). If you don't turn up one day, do you invoice your client anyway? I hope not.

If you don't get paid for not working, you pass one half of the MOO test. If you don't get paid when the client has no work for you, you pass the other half.

To use your example, either everyone is inside IR3 or no-one is. Which is it?

[Denny]

Is this strictly speaking complete, though?

Contractors are usually expected to do what the client tells them; in my mind, the differential is that although the client tells the contractor what needs to be done, the actual process of how it is done is left up to the contractor.

How does this work with tradesmen? For example, if I hire a builder for some work in my bathroom and then keep him/her on for additional bits and pieces for six months (conservatory here, reroof there....) at what point if any does the builder stop being an independent contractor and become an employee?

When you provide him with coffee and a stale ginger nut, that's when.

Strictly speaking it doesn't matter much whether builders cross the boundaries as much as limited considering nearly all their income is taxed in full anyway, most of them being sole traders - bar a few dispensations for allowable expenses.

I must admit though, I think builders or tradesmen are a great example of how cock eyed IR35 actually is. When I call in a decorator, I tell him what needs doing and he uses my walls to paint on. Isn't that client control too?

[malvolio]

Only if you tell him which make of brushes to use and in which direction to apply the paint and to what thickness and if he has to take notice of your instructions to that effect. The D&C rules as laid out by HMRC can be treated as a reductio ad absurdam in the courts and usually are. Why else the 1250-odd to 3 win/loss ratio?

[meridian]

Only if you tell him which make of brushes to use and in which direction to apply the paint and to what thickness ..

I leave that up to the wife

and if he has to take notice of your instructions to that effect......

Ah. Never had a tradesman take notice yet, doubt one ever will !!!!

[css_jay99]

Just a quick query on contracts.

If you get a contract via an Agency, Is the contract of service BTW you and the Employer OR you and the Agency ?

Since on my First contract, my contract of service is currently BTW me and my friend that got me the not me and the employer. Is this usually the norm

css_jay99

[Lucifer Box]

Just a quick query on contracts.

If you get a contract via an Agency, Is the contract of service BTW you and the Employer OR you and the Agency ?

Since on my First contract, my contract of service is currently BTW me and my friend that got me the not me and the employer. Is this usually the norm

css_jay99

Obviously not, as most contracts aren't secured by a friend. If the contract you have signed is with your friend, how much cut is he/she taking? Has he/she signed a contract with the client (I don't understand this talk of employers - are you an employee?) or is there another agent in the chain.

Your contract is with whoever's name is at the top of it.