'IR35-friendly' contracts could mean jail

[syn]

Consider the case where the contract says something like:

"The assignment must be completed by Archangel Gabriel of Celestial Systems Ltd"

If B&C agree with agent to change it to:

"Celestial Systems will supply a consultant of relevent experience to complete the assignment"

This puts the contract out of IR35, reflects the reality and is for perfectly good business reasons. No foul, no penalty.

So that one little statement is really all the contract needs to be outside of IR35? Seems to good to be true!

[malvolio]

So that one little statement is really all the contract needs to be outside of IR35? Seems to good to be true!

You really are new to this, aren't you.

Anyway, the best , most accurate, most representative contract in the world won't stop you getting investigated, it will merely stop you losing in about £15k and three years' time.

[TheFaQQer]

So that one little statement is really all the contract needs to be outside of IR35? Seems to good to be true!

Not quite - MOO, RoS and D&C are the key things.

But if the contract doesn't mirror the working practices, then you stand a greater chance of losing any investigation.

[The Lone Gunman]

That makes perfect sense gunman. So going back to my original question, how can Bauer & Cottrell legally get away with liasing with your agent to secure a more IR35 friendly contract?

See what others have already said. AA makes the point well. This is a complex subject with many different layers.

This area is a minefield. The legislation and its interpretation are wooly. All we can do is to take precautions to try and fall outside IR35.

Many agents and clients are either lazy or devious with their "standard" contracts. I say devious because a number of cliets actualy want a hidden employee rather than a B2B relationship.
People like B&C can look at these contracts ad modify them to our real working practice which has at least a two fold consequence. Fist we fall outside IR35. Second we have a document to show the HR idiots or the line manager when thye want us to do an employee thing or something else outside the contract.

B&C are not creating a mythical contract they are making the cntract reflect the reality and are therefore not dodging tax or commiting a fraud.

I hope that is clear I am not fully awake yet.

As ever: I am not qualified to give this advice.

[Denny]

See what others have already said. AA makes the point well. This is a complex subject with many different layers.

This area is a minefield. The legislation and its interpretation are wooly. All we can do is to take precautions to try and fall outside IR35.

Many agents and clients are either lazy or devious with their "standard" contracts. I say devious because a number of cliets actualy want a hidden employee rather than a B2B relationship.
People like B&C can look at these contracts ad modify them to our real working practice which has at least a two fold consequence. Fist we fall outside IR35. Second we have a document to show the HR idiots or the line manager when thye want us to do an employee thing or something else outside the contract.

B&C are not creating a mythical contract they are making the cntract reflect the reality and are therefore not dodging tax or commiting a fraud.

I hope that is clear I am not fully awake yet.

As ever: I am not qualified to give this advice.

The onus should be on the EB to ensure that the contracts at lower and upper end is a reflection of how our engagements will be in practice. Often they don't

Now I always INSIST on seeing the upper contract too - particularly the bit that states that my company will provide the services of a qualified consultant even though I may be named as the main representative.

A word of warning though: I would not use any EB whose terms need to be changed from an inside to outside contract, unless that is the only EB that can represent you (being inside is better than nothing at all). The change alone may well invalidate the true working relationship that the EB has made with the client in the upper contract and be seen as a sham arrangement, particularly if other contractors working on the same client account with same EB source and haven't changed the contract at all. Usually, this job is done for us, as most EB will refuse substantial changes if they can't change the upper contract to reflect that.

Having said that I am not at all sure if it isn't perfectly legit' for each contractor to tailor their own terms to meet their own needs - something that the HMRC can't challenge. Presumably, that could be the case, if B&C and Qdos actually stay in business quite legitimately. It is one to go back to them about. However, I fail to see how that can avert a lengthy and difficult HMRC review when the real aim for all of us is not just to stay ir35 compliant and run our businesses that way, but to get HMRC off our backs at the start of any review soon after the buff envelope ever hits the doormat. Who needs years of stress and anguish even if you do eventually win with all costs paid?.

Things to look out for, apart from the absence of the obvious three clauses worded correctly is opening description of the contract. Sometimes this is not right and is described as 'this is a contract for the service' or 'contract of the services.' Neither of these are valid terms to ensure that they are inside or outside ir35. They should either state 'contract of service' (inside ir3r) or 'contract for services' preferably in big bold letters. Any other wording is vague and woolly and usually signals that the rest of the terms may well be equally vague and woolly. Even if they are not, I would always suggest that the contract description should be changed to reflect ir35 compliant terms in the rest of the contract if you are satisfied that they are indeed ir35 compliant.

Also make sure that the works schedule actually reflects the ir35 exempt engagement arrangements too. They should never state working days and hours (unless this is pivotal to the role you are doing) or use words like overtime or even state 'role based at [location].' I always change this to state 'client location' (to reflect the fact that I may choose to work out of my own home office when it is convenient to do so).

My advice: before being represented by an EB, always ensure that your EB understands Ir35 properly and always see a blank copy of their standard terms before agreeing to be represented and always ensure that your company is being represented on the upper contract not you personally. It saves a lot of hassle further on down the line, once an offer is made.

If possible always try and use a sub during the assignment, even if it is not really necessary and only for a few days. This is actually better than doing a bit of extra work during the assignment for someone else, as ir35 is based on each contract so is pretty useless really unless you are being paid fixed rates. Who is?

The other way round all of this hassle, is to agree a bog standard contract without query on anything for only 1 month to test out ir35 compliance in practice, and then get the contract renewed after a month to reflect the true nature of the engagement for the rest of the assignment, even backdated to the first day on site. Sometimes this isn't always possible though.