Legal Definition of "Office Holder" ?

[Boo]

Hi,

I'm sure that most people whill have seen the new reg :

Arrangements made by intermediaries

1. In Chapter 8 of Part 2 of ITEPA 2003 (application of provisions to workers under arrangements made by intermediaries), in section 49 (engagements to which Chapter applies), in subsection (1), for paragraph (c) substitute –

“(c) the circumstances are such that -

(i) if the services were provided under a contract directly between the client and the worker, the worker would be regarded for income tax purposes as an employee of the client or the holder of an office under the client, or

(ii) the worker is an office-holder who holds that office under the client and the services relate to the office."

but where can the legal definition of "office-holder" be found ?

Note that I am not asking for general discussion, nor a list of things that might be covered, but a reference to the actual definition of "Office Holder" as it applies to this reg.

Thanks,

Boo

[northernladuk]

There is no statutory definition of the word 'office'. It has been judicially defined as a

‘permanent, substantive position which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders.'

[Rowlatt J in Great Western Railway Company v Bater 8TC231.]

That definition was approved in the more recent case of Edwards v Clinch 56TC367 with the proviso that a post need not be capable of permanent or prolonged existence but it must have an endurance at least beyond the tenure of one man. Buckley LJ stated

and more from...

Offices: definition

being a Yorkshire lad I don't find these an easy read but it appears this defines what an office is and the deduction is someone holding this position is an office holder so a bit arse about face for your question...

Load of other google links for office holder and HMRC but I didn't read them tbh...

[Wanderer]

where can the legal definition of "office-holder" be found ?

It won't be found anywhere because as our esteemed Northern lad says, HMRC admit that there is no statutory definition of what constitutes an "office holder".

Note that I am not asking for general discussion, nor a list of things that might be covered, but a reference to the actual definition of "Office Holder" as it applies to this reg.

So we have established that there is no statutory definition of "office holder" but we still need to get a clear understanding of the HMRC definition. People's views I've read on this forum are muddled at best. Boo, here's your chance to shine and contribute something useful. Google for site:hmrc.gov.uk "office holder" and read through the first 30 or so hits (you may be surprised to find the reference quoted by NLUK is the first in the list) and then write us up an authoritative summary of what you found with references to the original HMRC documents to back it up.

I would do it but I don't have the time at the moment.

[northernladuk]

Google for site:hmrc.gov.uk "office holder" and read through the first 30 or so hits (you may be surprised to find the reference quoted by NLUK is the first in the list) and then write us up an authoritative summary of what you found with references to the original HMRC documents to back it up.

OMG shhhhhhh!! People think I spent hours trawling HMRC site to find that.....

[EMEAfixer]

Breathing a sigh of relief, I found this: " For example, the post of manager of a factory or a head of division in an organisation is not an office because such a post will normally only exist as long as the organisation wishes."

ESM2503 - Offices: how an office is created

I guess that rules out some earlier speculation that all 'interim managers' and similar roles could somehow suddenly find themselves automatically inside IR35 regardless of the rest of their contract and working practices.

[SarahL2012]

Helpful link!

Breathing a sigh of relief, I found this: " For example, the post of manager of a factory or a head of division in an organisation is not an office because such a post will normally only exist as long as the organisation wishes."

ESM2503 - Offices: how an office is created

I guess that rules out some earlier speculation that all 'interim managers' and similar roles could somehow suddenly find themselves automatically inside IR35 regardless of the rest of their contract and working practices.

That's a really good link. My understanding would be that if you take over an interim role then it will only count as an office holder if it is one the business couldn't operate without from a statutory perspective. So in that I would probably include Company Secretary, CEO, Chairman, non Execs, maybe CFO and any roles that are regulated type positions. I would also include anyone who is formally appointed to the board of a company.

Ultimately they are trying to stop the Ed Lester situation arising again & I don't think they are trying to catch out all interim managers (I hope.......)

[Boo]

Offices: definition

Thanks.

From the link :

It must denote a post to which a person can be appointed, which he can vacate and to which a successor can be appointed.

Like, eg, 'Software Engineer' ?

Boo

[malvolio]

Thanks.

From the link :


Like, eg, 'Software Engineer' ?

Boo

Read the whole thing. It embraces posts such as the CEO that have to exist for the organisation to exist, not just function. In this context, Office Holder is a known definition with legal force. Coders don't qualify.

[Wanderer]

Read the whole thing.

Boo is apparently incapable of reading the links people have given or forming an opinion without being spoon feed the information...

[Boo]

Read the whole thing. It embraces posts such as the CEO that have to exist for the organisation to exist, not just function. In this context, Office Holder is a known definition with legal force. Coders don't qualify.

Boo is apparently incapable of reading the links people have given or forming an opinion without being spoon feed the information...

I did read the whole thing. The snippet I quoted was the test used in one particular court case. Another (also used to determine a case that reached the Lords) is as follows :

It must denote a post to which a person can be appointed, which he can vacate and to which a successor can be appointed.’

And it seems to me that there is nothing in that definition which prevents employment as a Software Engineer from being an office ? A person can be appointed as a SW Eng, s/he can vacate that position and a successor can (will very likely) be appointed in his/her place.

So maybe, Wanderer, it is you who needs to be spoon fed ?

Boo