sub-contracting / IR35 implications

[LisaContractorUmbrella]

Definitely. As soon as you sub, you demonstrate that there is a lack of requirement for your personal service. My point really was that being in business on your own account is irrelevant if you're trying to prove you're not employed at Tribunal. As you know, it all comes down to case law and the RMC case.

Not sure I'm with you Craig - being in business on your own account in this way would prove that you're not employed surely?

[Craig@Clarity]

Not sure I'm with you Craig - being in business on your own account in this way would prove that you're not employed surely?

I'm just saying that 'being in business on your own account' is not proving you're not employed. There's no basis in case law to support this.

As we all know, IR35 is based on a contract per contract basis. Having 2 simultaneous contracts does not mean your not employed. You could be deemed to be an employee on one and not the other. You can't escape this fact by law by arguing being business on your own account. There is no case to support this and doesn't remove the underlying facts of RMC (employee test) which all IR35 cases refer to and is the foundation.

[jamesbrown]

To just clarify on this point that trying to demonstrate being in business on your own account isn't going to help or win an IR35 case at Tribunal.

Essentially, I agree. The "in business" factors appear to be emphasised more by HMRC than by case law (i.e. the BETs and associated case studies). However, for the same reason, I wouldn't completely dismiss them. Also, insofar as they create an overall picture of being in business, I think these additional factors can only be helpful in marginal cases, and judges routinely cite financial risk and other in-business factors in their judgments, even if they are not centrally important.

[Craig@Clarity]

(i.e. the BETs .

Seriously though, I agree they do refer to secondary factors in some cases but it always comes down to the 3 major factors of employee status.

[jamesbrown]

Seriously though, I agree they do refer to secondary factors in some cases but it always comes down to the 3 major factors of employee status.

Yep. But, as I say, it also appears as supporting information in real judgments (again, not centrally important to those judgments). Take ECR, for example:

"ECR is in business on its own account. Elaine produced to the Tribunal copy business cards and company stationery. ECR operates from a dedicated business area at her home. It has company domain and website. ECR advertises its services and is a member of the PCG. It has retained reserves and invested in development and has over the years taken on fixed price work for a variety of clients."

These aren't things that you'd go out of your way to demonstrate, but it would also be a little odd to not demonstrate them by default, as a real business.

[Craig@Clarity]

"ECR is in business on its own account. Elaine produced to the Tribunal copy business cards and company stationery. ECR operates from a dedicated business area at her home. It has company domain and website. ECR advertises its services and is a member of the PCG. It has retained reserves and invested in development and has over the years taken on fixed price work for a variety of clients."

Fundamentally, in the case of ECR, she won on the basis that there was a lack of requirement for her personal service and lack of MOO. The above formed part of the "painting the picture" so I agree with you.