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What to say, and what not to say with regard to IR35

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    What to say, and what not to say with regard to IR35

    I run a small company with a couple of other people. Our company also has a small number of subcontractors (Ltd Co) that we use to provide our services.

    All of our work is currently with a single client however we are looking to diversify our customer base.

    Our client is a large organisation and the people making IR35 determinations are meeting our "business sponsor" soon to better understand our working practices.

    Our business sponsor realises that if we're deemed to be inside then we're out the door and his ability to do his job is completely torpedoed. Accordingly, he has asked me to give him a sense of any things he might want to emphasise, or anything he might want to avoid overplaying, so as to achieve his preferred outcome of us being deemed outside IR35 by his determinations people.

    I don't profess to be an expert on such matters but if I could give him a short bullet-point list of things to bring up, are there any "killer phrases" that people can recommend that could completely tilt the determination one way or the other?

    For the avoidance of doubt, I have no desire, and neither does my client, to be disingenuous or misleading (to the best of my knowledge, we are legitimately, demonstrably outside IR35). Rather, he simply wants to ensure he doesn't miss any opportunities to make clear things that, through naivety, he might not realise are significant, and nor does he want to misrepresent things in a way that has the potential to lead to the conclusion he's keen not to arrive at.

    My reading around the subject suggests that it boils down to substitution, control and mutuality of obligation but are there any "plain English" phrases that might be able to be dropped into a conversation, that they might be listening out for?

    If it helps, I think we can demonstrate that we've used substitution, that we aren't controlled by our client, and that our client is not required to provide us with work beyond that which we are contracted to provide (and that we aren't required to accept any and all of the work we're offered beyond the terms of our current contract). I think we can also demonstrate that we've incurred financial loss (albeit nominal) when we've made a small mistake in the work we've done - this alone doesn't necessarily demonstrate that we're taking significant financial risk but I'd hope it illustrates that a principle and precedent have been established and enforced that has the potential to be enforced with larger consequences if bigger mistakes were to be made.

    Any thoughts/ideas/advice very gratefully received.

    #2
    Originally posted by LaBillet View Post
    I run a small company with a couple of other people. Our company also has a small number of subcontractors (Ltd Co) that we use to provide our services.

    All of our work is currently with a single client however we are looking to diversify our customer base.

    Our client is a large organisation and the people making IR35 determinations are meeting our "business sponsor" soon to better understand our working practices.

    Our business sponsor realises that if we're deemed to be inside then we're out the door and his ability to do his job is completely torpedoed. Accordingly, he has asked me to give him a sense of any things he might want to emphasise, or anything he might want to avoid overplaying, so as to achieve his preferred outcome of us being deemed outside IR35 by his determinations people.

    I don't profess to be an expert on such matters but if I could give him a short bullet-point list of things to bring up, are there any "killer phrases" that people can recommend that could completely tilt the determination one way or the other?

    For the avoidance of doubt, I have no desire, and neither does my client, to be disingenuous or misleading (to the best of my knowledge, we are legitimately, demonstrably outside IR35). Rather, he simply wants to ensure he doesn't miss any opportunities to make clear things that, through naivety, he might not realise are significant, and nor does he want to misrepresent things in a way that has the potential to lead to the conclusion he's keen not to arrive at.

    My reading around the subject suggests that it boils down to substitution, control and mutuality of obligation but are there any "plain English" phrases that might be able to be dropped into a conversation, that they might be listening out for?

    If it helps, I think we can demonstrate that we've used substitution, that we aren't controlled by our client, and that our client is not required to provide us with work beyond that which we are contracted to provide (and that we aren't required to accept any and all of the work we're offered beyond the terms of our current contract). I think we can also demonstrate that we've incurred financial loss (albeit nominal) when we've made a small mistake in the work we've done - this alone doesn't necessarily demonstrate that we're taking significant financial risk but I'd hope it illustrates that a principle and precedent have been established and enforced that has the potential to be enforced with larger consequences if bigger mistakes were to be made.

    Any thoughts/ideas/advice very gratefully received.
    I think you'd be better having a quick talk with Kate Cottrell of Bauer & Cottrell or Qdos about this. They may give some advice for free or charge you but I honestly think that would be your best bet.
    I couldn't give two fornicators! Yes, really!

    Comment


      #3
      Originally posted by BolshieBastard View Post
      I think you'd be better having a quick talk with Kate Cottrell of Bauer & Cottrell or Qdos about this. They may give some advice for free or charge you but I honestly think that would be your best bet.
      ^^^ this is sound advice.
      They will be able to review your B2 contract and the details.


      Also... if none of the people you put on the client's site are named and they are there simply to deliver a service that is a very strong indicator. In that case then you might be the company who has to make the determination (unless you're very small, in that case you pass that tyo the contractors). The client cannot make a determination if they don't know who'll be doing the work can they?
      See You Next Tuesday

      Comment


        #4
        You should show them your "outside IR35 contract assessment" from QDOS or other going back to when you signed the contract

        If you didn't do this then., well, you should at least get it done PDQ

        You should discuss with them the deliverables

        Hopefully none of the other "stakeholders" attending the meeting are HR - otherwise your fox is shot.

        Hopefully you are meeting with procurement

        You need to say that if you are inside you will walk away

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