Which contract needs to be reviewd for IR35?

[LondonManc]

YourCo is legally bound by the contract you have with the agency. However, IR35 is concerned with your working practices. If the upper level contract points to working practices that would put you inside IR35, you'll need to explain that, which may not be straightforward. That is a perennial risk w/r to IR35 when working through agencies. This isn't about who is contractually bound to what, but the evidence in an IR35 investigation. You can only control the contract between YourCo and the agency and, crucially, your working practices. If your working practices are outside, you're fine, but you may have a tougher fight when the upper level contract is exposed as contradictory.

Agreed - I wonder then if there's a case for negligence on behalf of the agency for placing a contract inside IR35 that on the face of it appears to be outside IR35?

[Qdos Contractor]

Hi,

If the agency is involved then which contract needs to be reviewed? The one b/w client and my agency or the one b/w myself and my agency?

I believe in the event of an HMRC inquiry, they can look at both contracts (one between myself and my agency and the one between the agency and the client) but it is not easy to see the upper level contract as most of the agencies would refuse to show it.

I have personally come across few agencies who hold different IR35 friendly contracts templates and willing to offer these to contractors when actual upper level contract is inside IR35.

Hi sdyson31,

You should always have the contract which you are directly involved with assessed (i.e. the one between your company and the agency). This is the contract which HMRC will first look at should they enquire into your accounts. Don't forget your working practices which hold even more weight than your contract.

HMRC can look into the upper level contract (the one between your agency and end client) but are unlikely to do so unless all other evidence is unclear up until that point. It does seem incredibly unfair for this contract which you never see to have a bearing on your IR35 status. The way HMRC would see it, is that because you don't see it, you can't amend it, and therefore can't try and give a false view on the real situation. If there are discrepancies between the upper level and lower level contracts, then something somewhere is clearly wrong.

If you can get access to the upper level contract, then great! Get it checked because you have the rare chance to ensure there are no discrepancies to bring you down in an enquiry.

[sdyson31]

Hi sdyson31,

You should always have the contract which you are directly involved with assessed (i.e. the one between your company and the agency). This is the contract which HMRC will first look at should they enquire into your accounts. Don't forget your working practices which hold even more weight than your contract.

HMRC can look into the upper level contract (the one between your agency and end client) but are unlikely to do so unless all other evidence is unclear up until that point. It does seem incredibly unfair for this contract which you never see to have a bearing on your IR35 status. The way HMRC would see it, is that because you don't see it, you can't amend it, and therefore can't try and give a false view on the real situation. If there are discrepancies between the upper level and lower level contracts, then something somewhere is clearly wrong.

If you can get access to the upper level contract, then great! Get it checked because you have the rare chance to ensure there are no discrepancies to bring you down in an enquiry.

Thank you

[Contreras]

Oh dear oh dear...

I find that very hard to believe. The upper contract is none of your business ...

... what can the matter be?

oh dear oh dear oh dear

Two old ladies were locked in the lava'try?