IR35 Inside/Outside same supplier and ways of working? What to do?

[dave748]

How do you think you can do that? you have no means of doing that…

I have leverage in the fact that I know I currently hold a lot of cards in my current position. If I walk, or they push me, it would be months to find a replacement and months for someone else to learn my role. Also, the end customer is putting a lot of pressure on the hiring department to ensure no more experience is lost and key contractors are retained.

This is not something I ever wanted to use but, they've pushed me into a corner and made a mistake that I can capitalise on to change the outcome to what it should have been all along.

[ladymuck]

So if the client you're working for needs to retain experience in order to keep the end customer happy then perhaps they should have taken on permanent staff rather than contractors who have a mind of their own. Sounds like they sold a capability they didn't have and the filled it with temps

[dave748]

So if the client you're working for needs to retain experience in order to keep the end customer happy then perhaps they should have taken on permanent staff rather than contractors who have a mind of their own. Sounds like they sold a capability they didn't have and the filled it with temps

Sure did, they have many permanent staff, however, not many of them are suitably qualified or experienced and, those that are, are not paid enough to stay.

[eek]

I still don’t see anything that justifies changing an inside IR35 decision especially now you’ve added the fact there is an end client who may be the one making the decisions…

so now we are clearly playing 20 questions is this other contractor working on the exact same project with your exact skill set and the same end client?

[dave748]

I still don’t see anything that justifies an IR35 decision especially now you’ve added the fact there is an end client who may be the one making the decisions…

It's complicated, the "end client" and the department making the decisions are essentially different parts of the same organisation. Working practices go something like this:

"This is kind of what we want, can you project manage it, design it, document it, build it and test it, give it to us when you're are done, we'll kick the tyres and throw it into production."

Tell me that's not OUTSIDE IR35 all day long?

[eek]

It's complicated, the "end client" and the department making the decisions are essentially different parts of the same organisation. Working practices go something like this:

"This is kind of what we want, can you project manage it, design it, document it, build it and test it, give it to us when you're are done, we'll kick the tyres and throw it into production."

Tell me that's not OUTSIDE IR35 all day long?

Are you the person project managing and delivering it on a fixed fee basis? if not the decision isn't yours to make

[dave748]

Are you the person project managing and delivering it on a fixed fee basis? if not the decision isn't yours to make

I am project managing it and delivering it on a daily fixed fee basis for my skills. I'm not disputing who makes the determination, I'm disputing the outcome of the determination. Based on what constitutes as an OUTSIDE or INSIDE role, based on all the facts of my actual working practices, even the HMRC determination tools itself, which we all know to be biased towards an INSIDE determination, all say I should be OUTSIDE.

[eek]

I am project managing it and delivering it on a daily fixed fee basis for my skills. I'm not disputing who makes the determination, I'm disputing the outcome of the determination. Based on what constitutes as an OUTSIDE or INSIDE role, based on all the facts of my actual working practices, even the HMRC determination tools itself, which we all know to be biased towards an INSIDE determination, all say I should be OUTSIDE.

Time and materials (which a daily rate is) is not a fixed fee for delivery of the complete finished project where financial risk for overrunsvis passed to the company delivering the project.

Sorry but you really don't have the first clue about what determines whether a contract is inside or outside IR35 if you think a daily rate is a fixed project fee.

Edit to add - also remember DWP have just paid HMRC £87.9m because they used invalid CEST determinations that created outside IR35 results that should have been inside.

[jamesbrown]

What was "big news" exactly? Dave Chaplin's archive of tribunal judgements? These are IR35 tribunal cases, which are sadly irrelevant to your predicament. These cases were started by HMRC for contractors who claimed they were outside, not by a contractor who disagreed with a client's SDS. Anyway, the clue is in the last dated entry:

> 18 FEBRUARY 2020

As I said, you have no legal avenues, at least no clear ones. By all means, pay someone to tell you the same thing. It sounds like you're having a hard time internalizing that, which is understandable, but Chapter 10 was very much designed by HMRC to increase tax revenue, not to shield unwitting contractors against disguised employment. Eventually, you'll come to terms with this and do what everyone else in your position has done: accept it as is, negotiate a higher rate, or walk.

[dave748]

Time and materials (which a daily rate is) is not a fixed fee for delivery of the complete finished project where financial risk is passed to the company delivering the project.

Sorry but you really don't have the first clue about what determines whether a contract is inside or outside IR35 if you think a daily rate is a fixed project fee.

I know what a fixed fee for delivering a project is, there are other means of financial risk than paying for an entire project out of my own pocket which places me OUTSIDE. I've been through several determination questionnaires, and answering honestly about every aspect of my role ALWAYS results in an outside determination. I've never had an INSIDE determination yet.