Worried about IR35 ?

[scrollock]

I've come to the end of my year, and am now starting to wrap up things and am now becoming a lot more aware of IR35 and have probably started scaring myself.

My situation is two years ago I was a shareholder and an employee in a SME, due to a possible takeover I took a position at another company. Basically it was a way to exploit a loophole in my shareholders agreement. Which allowed me to enforce my tag along rights, avoid staged payments and not to have non-compete clauses imposed on me as the other shareholders were planning to screw me over.

The takeover finally happened and I banked a lot of moolah and managed to retain a lot of IP from the first company, not needing to have a permanent role anymore and having offers from other companies I started my own business along the lines of the first business. Except that only I and my partner are the only shareholders and employee's although I hope to expand in future.

I've bagged two clients so far, and look like getting a third soon.

However the problem is that after I quit, my former employers not wanting to lose me offered me a contract and I accepted as I needed the work, if relevant there were my 2nd client to sign.

The situation is further complicated in that, my former employers were competing in the takeover battle for my former company, however they were not interested in buying the business but some of it's assets.Specifically the IP I retain. So essentially they poached me, with a Large salary and Bonus.

Now I am worried I might fall into IR35, my reasoning for not being to concerned in the past (although I have made sure my contracts are written with IR35 in mind) is that I really am trading as a genuine business, have traded as a genuine business in the past, have multiple clients etc. However due to my previous relationship with my client, I am worried.

How do I get someone to check over my contracts, my situation and organise insurance if needed ?

[northernladuk]

Speak to QDOS or Bauer and Cottrell.

You don't fall in to IR35, you are either inside or outside. I think some basic research will give you the peace of mind you need though.

[jamesbrown]

you are either inside or outside

More specifically, a contract is either inside or outside.

To the OP, have the contract checked if you have any concerns, but securing work with a previous employer is subject to the same treatment under IR35, only you'll need to consider the implications of being under D&C and MoO previously, i.e. what has substantially changed? In your case, it sounds like a lot of things could have changed substantially, but the starting point is the contract (as a reflection of actual working practices), so get it checked out. It sounds to me like you're running a business here, not attempting to avoid tax through some artificial arrangement (but the contract and working practices are the important things).

[scrollock]

Speak to QDOS or Bauer and Cottrell.

You don't fall in to IR35, you are either inside or outside. I think some basic research will give you the peace of mind you need though.

I will speak to them, thanks. It's basic research that has ruined my peace of mind!

[scrollock]

It sounds to me like you're running a business here, not attempting to avoid tax through some artificial arrangement (but the contract and working practices are the important things).

I'm definitely running a business, just worried my contract and working practices maybe misconstrued due to the previous relationship with my client.

Things have definitely changed, however sometimes they don't feel like they have. But this is more down to my client forgetting the relationship.

[jamesbrown]

Things have definitely changed, however sometimes they don't feel like they have. But this is more down to my client forgetting the relationship.

Right, but that's the problem you'll face in this type of arrangement, i.e. ongoing D&C and MoO, so it's important that the contract and working practices reflect a contract for services and a clear break from before. I don't doubt that you're running a business, and that definitely contributes to the overall picture, but you still have to treat the contract like any other and get it reviewed, plus retain any evidence of your working practices.

[scrollock]

Right, but that's the problem you'll face in this type of arrangement, i.e. ongoing D&C and MoO, so it's important that the contract and working practices reflect a contract for services and a clear break from before. I don't doubt that you're running a business, and that definitely contributes to the overall picture, but you still have to treat the contract like any other and get it reviewed, plus retain any evidence of your working practices.

I'm good on those things, basically I can do what I want, where I want and with who I want. I have them covered contractually and my client is understands that very well.

It's the small things, e.g. still being to referred to by my old job title around the office, being on the company phone directory, being assigned a work email address, being invited to xmas parties and such things

Although I'm bit worried about the "clear break" you have mentioned, I left the company and had signed a contract with a new party, then they immediately offered asked if they could be a client on the same terms. So the break was minimal.

This is one of my worries, had it been another company I would have been fine as I believe having two clients who I can mix and match when I worked for them, would put me firmly outside IR35.

However I'm now worried that my previous relationship might be misconstrued and that my other client is being used as cover for "disguised employment"

It feels like that I have restraint against my former employers, however they are biggest by far in my industry and the terms I was offered were too good to turn down.