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[RonBW]

As a defence - do you not have to "prove" (any) one of the "three pillars" rather than Hector having to "dis-prove" just one of them?

AIUI, HMRC need to prove the existence of all three; the contractor needs to prove the absence of one (although there is the double negative in that you need to prove the absence of the existence of mutuality of obligation )

[LondonManc]

AIUI, HMRC need to prove the existence of all three; the contractor needs to prove the absence of one (although there is the double negative in that you need to prove the absence of the existence of mutuality of obligation )

One thing I've wondered, where does a furlough sit with MoO? Clearly it's a big IR35 tick (financial risk, etc.), but wondered if it was enough to prove MoO doesn't exist?

[d000hg]

Deary me.
I could eat a can of alphabet soup and crap out a better argument than that.

None of your previous posts suggest that.

The argument "I'm not abusing the system by avoiding tax because HMRC are 'doing OK from me'" is such an argument though, maybe PurpleGorilla ate some alphabites.

[northernladuk]

AIUI, HMRC need to prove the existence of all three; the contractor needs to prove the absence of one (although there is the double negative in that you need to prove the absence of the existence of mutuality of obligation )

Yeah, something more along the lines of this in theory and but yes Dacty is kinda right. It might be easier to say IR35 is decided on these pillars. Trying to work out exactly what to defend/prove makes my brain hurt. Which ever way it is HMRC will be out to use those to prove you are inside.

https://www.ipse.co.uk/news/ir35-and...ered-questions

How will IR35 status be judged:

Does HMRC recognise the difference between contractors doing operational roles and project roles?

Having a clearly defined project role is certainly a helpful pointer for IR35 but it is the working practices that really make the difference. Personal service; Supervision, Direction & Control; Mutuality of Obligation are still the central pillars upon which IR35 status is determined.

Any idea what information the end client will use to determine the contractor status?

The end client will have to consider the terms of the contract and, more importantly, the working practices of the engagement. In particular they will need to consider Personal service; Supervision, Direction & Control; Mutuality of Obligation -the central pillars upon which IR35 status is determined.

[RonBW]

One thing I've wondered, where does a furlough sit with MoO? Clearly it's a big IR35 tick (financial risk, etc.), but wondered if it was enough to prove MoO doesn't exist?

I'm not au fait enough with all the IR35 tribunals to know whether it's ever been argued or not, but my amateur legal thinking would be that if the client can (and does) say "there is nothing for you to do, go away for a bit and then come back and complete the work that you are contracted to deliver" then that would be a significant pointer towards a lack of mutuality of obligation.

Would be interesting to see whether any of the cases have included that in their legal argument. Maybe if someone knows Seb at Qdos personally they could ask him for an opinion.

[vetran]

People get off or reduced speeding convicts for turning up with decent lawyers, so it's not surprising the same happens in other areas of law.

So you are saying 0.002% of speeding convictions actually succeed because the other guilty parties hire great lawyers? Gotta get me one of those!

The laws are ambiguous & poorly planned they are the problem not those that interpret them to their advantage (in the opinion of a bunch of halfwits on an internet bulletin board).

If you want to win in a court prove it using a clear and exact set of conditions(e.g. if X=1 Y<7 and Z is null).

if you want to create fear and uncertainty that wastes money & time then create the uncertainty of IR35 (e.g. if in the plaintiff's opinion based on no evidence the defendant is guilty).

This is why QDOS win again & again. The government screwed it up.


Now I think BOS contractors should pay more tax than actual businesses but I think it should be possible to decide which you are by a clear set of rules based on fact not opinion. I have been both but some of my businesses could have been seen as BOS by HMRC if they chose to do so.

[vetran]

I'm not au fait enough with all the IR35 tribunals to know whether it's ever been argued or not, but my amateur legal thinking would be that if the client can (and does) say "there is nothing for you to do, go away for a bit and then come back and complete the work that you are contracted to deliver" then that would be a significant pointer towards a lack of mutuality of obligation.

Would be interesting to see whether any of the cases have included that in their legal argument. Maybe if someone knows Seb at Qdos personally they could ask him for an opinion.

yes it has, plenty of write ups out there. However HMRC will approach the client & say "so if the contractor refuses to work on go live date would you consider that a breach? and if he finishes work at 4:45 can he leave early?" To which the client say "yes that's a breach and no it would upset my other staff" Job done MOO established.

[Dactylion]

AIUI, HMRC need to prove the existence of all three; the contractor needs to prove the absence of one (although there is the double negative in that you need to prove the absence of the existence of mutuality of obligation )

:-)

Yeah, something more along the lines of this in theory and but yes Dacty is kinda right. It might be easier to say IR35 is decided on these pillars. Trying to work out exactly what to defend/prove makes my brain hurt. Which ever way it is HMRC will be out to use those to prove you are inside.

I was merely questioning your adamant statement that PC was doomed, absolutely, unconditionally and without question because "D&C is proven at any level".........

But Hey you seem to want to continue your somewhat tired and tedious trolling of PC at every opportunity no matter........... :-)

[SueEllen]

So you are saying 0.002% of speeding convictions actually succeed because the other guilty parties hire great lawyers? Gotta get me one of those!

Most speeding offences are heard in magistrates courts, and magistrates are lay people. Regardless it is still up to you to get representation so you either get off or your mitigating circumstances help you avoid a harsh sentence.

The laws are ambiguous & poorly planned they are the problem not those that interpret them to their advantage (in the opinion of a bunch of halfwits on an internet bulletin board).

If you want to win in a court prove it using a clear and exact set of conditions(e.g. if X=1 Y<7 and Z is null).

if you want to create fear and uncertainty that wastes money & time then create the uncertainty of IR35 (e.g. if in the plaintiff's opinion based on no evidence the defendant is guilty).

This is why QDOS win again & again. The government screwed it up.


Now I think BOS contractors should pay more tax than actual businesses but I think it should be possible to decide which you are by a clear set of rules based on fact not opinion. I have been both but some of my businesses could have been seen as BOS by HMRC if they chose to do so.

The law is poorly worded to spread FUD. You can then add further to that FUD by the fact that some people are too stupid, mean or both to spend money on getting tax investigation insurance. This means if you have a case where someone has legal representation and another where someone doesn't, you know who to bother harassing.

[SueEllen]

yes it has, plenty of write ups out there. However HMRC will approach the client & say "so if the contractor refuses to work on go live date would you consider that a breach? and if he finishes work at 4:45 can he leave early?" To which the client say "yes that's a breach and no it would upset my other staff" Job done MOO established.

Or the client will be uncooperative and say to every question - "It's all in the contract" Worried that if they say anything HMRC will investigate them for something.