IR35, MoO and vacation

[dty]

As I understand it, you only have to demonstrate one of the 3 pillars to be considered outside IR35 - D&C, MoO or RoS.

So, if one were planning a vacation and sent an email to the client manager saying "per clause X of our contract, I won't be available to work between these dates" (after conversation with said manager for purposes of professionalism, obviously), would that not demonstrate that you have MoO and blow an investigation out of the water?

[SpontaneousOrder]

As I understand it, you only have to demonstrate one of the 3 pillars to be considered outside IR35 - D&C, MoO or RoS.

So, if one were planning a vacation and sent an email to the client manager saying "per clause X of our contract, I won't be available to work between these dates" (after conversation with said manager for purposes of professionalism, obviously), would that not demonstrate that you have MoO and blow an investigation out of the water?

I don't think so because permies can take holiday too. It might constitute a lack of D&C though.
I think lack of MOO would be more like when your project finishes and they say "hey, how about you go work with this other team now?" and you say "No thanks. Shall we terminate the contract now that there is no more work that I'm contracted to do?"

[TheFaQQer]

would that not demonstrate that you have MoO and blow an investigation out of the water?

I doubt that would be enough to show that you are different from how employees do things.

[MyUserName]

As I understand it, you only have to demonstrate one of the 3 pillars to be considered outside IR35 - D&C, MoO or RoS.

So, if one were planning a vacation and sent an email to the client manager saying "per clause X of our contract, I won't be available to work between these dates" (after conversation with said manager for purposes of professionalism, obviously), would that not demonstrate that you have MoO and blow an investigation out of the water?

In a word - no. You need to demonstrate that there is a significant difference between how you work and how permies work at your client. HMRC will just look at this email and guess you have verbally arranged things with the powers that be and have just worded the email a certain way to look good.

Imagine you are a HMRC investigator trying to find someone inside IR35, what would cause you to stop in your tracks and be unable to claim something is window dressing or just a sham contract clause?

[NickNick]

I doubt that would be enough to show that you are different from how employees do things.

surely employees request holidays wheras this is a statement of when the OP won't be on site?

[Contreras]

surely employees request holidays wheras this is a statement of when the OP won't be on site?

Yes but by itself wouldn't be enough to "blow an investigation out of the water".

Especially if it is contradicted by client responses to HMRC questioning.

[dty]

Somehow I didn't think it would be quite so simple!

[TheFaQQer]

surely employees request holidays wheras this is a statement of when the OP won't be on site?

If the client says "we had a chat first and I said it was OK for them to take the holiday" then the wording of an email isn't going to make any difference.

If you said to the client that you were unavailable and would they like you to arrange a substitute why you were away, that would be much better.

[LisaContractorUmbrella]

As I understand it, you only have to demonstrate one of the 3 pillars to be considered outside IR35 - D&C, MoO or RoS.

So, if one were planning a vacation and sent an email to the client manager saying "per clause X of our contract, I won't be available to work between these dates" (after conversation with said manager for purposes of professionalism, obviously), would that not demonstrate that you have MoO and blow an investigation out of the water?

Just one 'pillar' wouldn't do it

[TheFaQQer]

Just one 'pillar' wouldn't do it

Yes it would. HMRC need to prove all three; the defence only need to prove one to be outside.