SDS Appeal

[Jolie]

The contract is normally between your Ltd company and the Agency, the client is not party to this agreement, therefore they are not breaching any terms at all. Have you seen the upper contract between the agency and the End Client.

The client is at liberty to state that they will not accept a substitute, this makes it very difficult to get an outside IR35 status determination.

Agreed ont the first part, but it doesn't impact the ability to get an outside determination, the RoS on it's own is quite weak because most clients will reject this. If the rest of SDC and MOO are strong, then this will be enough.

[Blencathra]

"Would they really state in an SDS that they would breach one of the terms of my contract of employment or am I missing something?"

The contract is normally between your Ltd company and the Agency, the client is not party to this agreement, therefore they are not breaching any terms at all. Have you seen the upper contract between the agency and the End Client.

The client is at liberty to state that they will not accept a substitute, this makes it very difficult to get an outside IR35 status determination.

So there are terms in my contract with agency that may not be reflected in the upper contract with the client. Surely that makes my contract with the agency almost meaningless from a legal standpoint.

[northernladuk]

So there are terms in my contract with agency that may not be reflected in the upper contract with the client. Surely that makes my contract with the agency almost meaningless from a legal standpoint.

Welcome to contracting.

[Blencathra]

So you lodge an appeal, leave before they have a chance to respond and.... and... Ermm..

That will show them..

So this isn't a real thread. Its just a rant.

This whole IR35 discussion seems to be about taking action to reduce risk of a retrospective HMRC investigation. I happen to think that an 'on the record' appeal against a client's inside IR35 determination setting out my reasons for my previous outside self-determination may support my position as opposed to what could be interpreted as a tacit acceptance of the client's determination if I leave without lodging an appeal. You may disagree.

[Lance]

So there are terms in my contract with agency that may not be reflected in the upper contract with the client. Surely that makes my contract with the agency almost meaningless from a legal standpoint.

It's perfectly legal. It's not meaningless. It is what it is. A contract for services between yourco and the agency.
The agency are the one with the problem in that if there is a mismatch they are the ones on the hook. And that's why they have short notice periods, usually shorter than the upstream notice.

As for RoS. In most cases it's a sham. Most clients wouldn't accept and most agents wouldn't either as they'd want the sub as their man onsite. In that regard it's equally a sham so probably one of the better balanced clauses

[eek]

This whole IR35 discussion seems to be about taking action to reduce risk of a retrospective HMRC investigation. I happen to think that an 'on the record' appeal against a client's inside IR35 determination setting out my reasons for my previous outside self-determination may support my position as opposed to what could be interpreted as a tacit acceptance of the client's determination if I leave without lodging an appeal. You may disagree.

Our entire reason for saying leave before hand is to do the best you can to avoid yourself getting on HMRC's radar.

If you are happy to be on HMRCs radar with weekly reminder texts and phone calls asking for a large sum of money then continue in your current role. But an SDS appeal doesn't change the fact your client thinks you are doing a job inside IR35 which will make any appeal a lot harder.

Also I don't think HMRC are hoping for cases to go to court, they want to make things painful for you for 5+ years until you give in and pay up. Remember there are still loan cases awaiting hearings where the loan itself was taken out before 2010 - HMRC can play a very long game and slowly increase the stress...

[Blencathra]

Welcome to contracting.

So people are paying for IR35 reviews of their contracts with agencies when what they should be reviewing is the upper contract between agency and client (or possibly both). This is a mess.

[Lance]

So people are paying for IR35 reviews of their contracts with agencies when what they should be reviewing is the upper contract between agency and client (or possibly both). This is a mess.

now is the time for a "welcome to contracting" blase comment....

[eek]

So people are paying for IR35 reviews of their contracts with agencies when what they should be reviewing is the upper contract between agency and client (or possibly both). This is a mess.

No - they are reviewing the contract you have which shows that your business did everything it could to confirm your status was what you thought it was.

And it's fair for everyone to assume that the contract the agency gives you reflects (to a very reasonable level) the contract the agency has with the end client.

[northernladuk]

So people are paying for IR35 reviews of their contracts with agencies when what they should be reviewing is the upper contract between agency and client (or possibly both). This is a mess.

Not really. The upper contract is none of our business and is possible it won't carry all the information pertaining to our engagement anyway. It's mostly about the engagement with the agency. We do have to trust the agents that key details are in there like RoS but at the end of the day working practices on site trump the contract anyway. It's always been like this and we've managed.

This whole IR35 discussion seems to be about taking action to reduce risk of a retrospective HMRC investigation. I happen to think that an 'on the record' appeal against a client's inside IR35 determination setting out my reasons for my previous outside self-determination may support my position as opposed to what could be interpreted as a tacit acceptance of the client's determination if I leave without lodging an appeal. You may disagree.

You lodging a pointless appeal using a process that isn't even in place yet won't support anything at all. You should be able to see this. There are no facts at all that support your thinking and you are the only person, on here and in RL that thinks this which speaks volumes.

I don't need to disagree, there is no factual evidence that supports your actions. All I see is another contract being a bit of a tit for no apparent reason or gain which is going to do more damage for other contractors than good.

As I say, the appeals process won't kick in until after April when the legislation kicks in so you all you are doing is looking like a trouble maker.