Should we be worried about retrospective claims?

[northernladuk]

Possibly, the first step should be to challenge their assessment and provide evidence to show why you believe you are not caught by IR35. Your client would then have 45 days to respond showing you not only how they arrived at that decision but also demonstrating how they've taken reasonable care.

Of course, that's under the new rules which will only come into effect when the legislation is passed. This current government are in real danger of not even delivering a budget before the new fiscal year so pop on your guessing hat and joing the party because guessing how this is going to work seems to be all any of us can do with this at the moment.

I don't think this is the case. Simon is talking about when an HMRC investigation lands on your mat. You are well passed the challenges with the client at this point.

[northernladuk]

While this question has been raised and answered numerous times,

It has? Could you provide some links because I don't think anyone has gone in to it in detail as SimonMac has here.

Could you link some examples?

I wonder, and have voiced elsewhere, that if the HMRC wanted to bring about a retrospective claim, and you/one/we all have the necessary legal insurance in place to tackle such, that in court, with the 'right thinking minds' that have won for contractors the lion's share of IR35 related court cases, this would be an opportunity to show clients just how easy it is to win cases with IR35.

But we don't. QDOS can walk away if there is no chance of a win, which to be fair, when the client says inside it's looking unlikely from the off. This is new territory so any previous court cases and win's are not a measure of the future.

[northernladuk]

JtB off topic tedious chuntery incoming in 10... 9 ...

[DeludedKitten]

Bolded bit - Absolutely you should. The cost and stress of getting there, win or no win will be highly unpleasant. I'll bet if they do start spamming investigations, even with the knowledge it might be beatable there will be some terrible personal fall out as per the loan charge. Not worrying about retro investigations because an SDS might be pulled apart is very foolish.

HMRC have engaged plenty of contractors outside IR35 over the years, so maybe they'll start spamming those as the starting point. Get your own house clean etc

Conversely, HMRC may realise that they need outside IR35 contractors to get any work done...

[BR14]

JtB off topic tedious chuntery incoming in 10... 9 ...

oh, no, it isn't!!

checkout the Who's been banned thread

......

[SimonMac]

Bolded bit - Absolutely you should. The cost and stress of getting there, win or no win will be highly unpleasant. I'll bet if they do start spamming investigations, even with the knowledge it might be beatable there will be some terrible personal fall out as per the loan charge. Not worrying about retro investigations because an SDS might be pulled apart is very foolish. QDOS have the ability to walk away from this if they don't like it. Where will that leave you? But that said, the question on the situation..

I think the bottom line is that if the SDS has been put together with some level or reasonable care and attention it stands in a very strong position. It may even trump working practices, particularly at the beginning as it's the framework they expect the role to meet. In the early days with little evidence of the new engagement it will probably be the baseline. To go to FTT you are going to have a very solid case to be spending that amount of time and effort to get there. Complaining you can WFH, you don't think you are under D&C etc are very tenuous when you are faced with a case like this and QDOS would have to agree else they'll drop the case.

It wouldn't show it's flaws as such, it would open areas that would have be investigated and argued, albeit from a particularly weak point that you don't think it's fair or that your working practices have flexed a little to suit you. That doesn't mean the SDS isn't invalid.

We've repeated the mantra that the risk is on the client as it is their SDS and that is our protection going forward. We can't flip that 180 when it suits us to then say SDS doesn't mean anything when it suits us. I think a case where an inside SDS is challenged and loses sets a very dangerous precedent where HMRC will want to look at outside ones. The risk is with the client? If this starts falling apart I find it hard to believe we will come out unscathed.

If this ever gets to FTT then you've lost already to be fair. The time, effort and stress will be very uncomfortable. Your only defence is that the FTT will have to dig through the minute detail to find some flaws that may or may not be enough to turn the case in your favour is tenuous at best. Will QDOS et al be supporting you this far even?

It's an interesting question and one that is very likely to happen. I really don't think there is anything tangible we can say that will help alleviate the amount of risk to help anyone that is in this position. If anything it scares me even more now you've mentioned it.

/micdrop

We've repeated the mantra that the risk is on the client as it is their SDS and that is our protection going forward. We can't flip that 180 when it suits us to then say SDS doesn't mean anything when it suits us.

It's not really a 180, we are seeing the SDS is being used for the clients protection not ours, its not out of the realms of possibility that something that is in the interest of one party, is at the detriment of another.

Other than that, can't argue with anything you've put!

[northernladuk]

......

Goddamit. I can't get anything right.

[Patrick@Intouch]

I don't think this is the case. Simon is talking about when an HMRC investigation lands on your mat. You are well passed the challenges with the client at this point.

Accepted, but the point is to not wait until that point and challenge an SDS now if it's not worth the paper it's written on. If you receive an SDS and disagree with it, doubting reasonable care and believing that it's worthless but then accept the terms anyway, that feels like it might weaken any future objections!

[SimonMac]

Accepted, but the point is to not wait until that point and challenge an SDS now if it's not worth the paper it's written on. If you receive an SDS and disagree with it, doubting reasonable care and believing that it's worthless but then accept the terms anyway, that feels like it might weaken any future objections!

The appeal to my SDS has already been submitted

[northernladuk]

The appeal to my SDS has already been submitted

Out of interest have have you worded the appeal and on what points? . Is it an appeal or just attempting to open a negotiation on the future role? Have you quoted the legislation to try get a response?