legal challenges to IR35 - maybe this has been tried already?

[breaktwister]

I've been out of the loop on IR35 developments until recently and was wondering if there have been any legal arguments brought in any of the cases to have certain parts of the legislation stuck out as incompatible with European Convention on Human Rights? The Courts have been known to throw out parts of subordinate UK legislation as incompatible with ECHR for interfering with the Courts discretion (see https://www.cms-lawnow.com/ealerts/2...ted?cc_lang=en) and it seems the preposterous nature of IR35 breaches ECHR in two key areas:

1. that an end-client can determine the business status of a third party service provider (breach of Article 8 has been held to include the right to a business)
2. the Court is directed to ignore an actual contract and instead create a hypothetical contract, this should be fully at the Courts discretion (breach of all common sense and hundreds of years of common law, breach of various ECHR sections as per Wilson v First County)

Also, it seems that any Barristers who operate via an Ltd would fall under IR35 especially where they receive all of their business via a single solicitors firm. Has anyone any evidence that HMRC has excluded the solicitor/barrister engagement from IR35 and if not have they investigated any such engagements? I guess not as they only want low hanging fruit. It seems unfair to me that whole industries would be excluded from the application of "the law" solely due to HMRC discretion.

[breaktwister]

Forgot to mention I asked Dave Chaplin about this and he said he didn't know. I thought he was involved in a ton of cases?

[northernladuk]

Bearing in mind this is Business to Business what does ECHR have to do with it? I'm sure there maybe places where you think it applies but bringing human rights in to it is really scraping the barrel isn't it. Fill your boots though, tell us how you go on.

He is and the fact Dave didn't know gives you your answer.

[breaktwister]

NLUK, If you read the case summary I posted you will find your answer. And yes, scraping the barrel. I won't be sticking my head over the parapet bringing a case against HMRC but there are certain bodies who defend these cases that could ensure that the lawyers are competent and bringing every possible argument.

[northernladuk]

NLUK, If you read the case summary I posted you will find your answer. And yes, scraping the barrel. I won't be sticking my head over the parapet bringing a case against HMRC but there are certain bodies who defend these cases that could ensure that the lawyers are competent and bringing every possible argument.

That is a case of a person and there is a wooly footnote that comments that ' gives credence to the notion ' which is a tip of the hat at very best and also mentions ' failure to adhere to the statutory provisions gives rise to an disproportionate penalty, '. Going to be very difficult to argue paying the proper amount of tax (argued point) is a disproprotionate pentalty.

That case was also from 2001 and there have been plenty of IR35 investigations, some that came to court and the fact ECHR hasn't been used speaks volumes. I can't believe your average Joe contractor can find something that many hours of lawyers time hasn't uncovered.

[breaktwister]

No, the creditor was First County Trust Ltd and it was their rights that were impacted. Not sure what you are waffling about "very difficult to argue paying the proper amount of tax is disproportionate", the impact to the Ltd of IR35 determination by a client is usually closure of the business which is a most severe penalty. You are making a mistake in thinking that just because a legal argument has not been brought before then it must be invalid. If you have nothing further of value to add I'll move on and try reaching out to few companies that provide IR35 insurance and see if they have any insight into whether these arguments have been raised.

And you should be more respectful than refer to people who you have no idea what they have done in their life as "average Joe". From your interaction here it is clear who the "average" one is.

[northernladuk]

No, the creditor was First County Trust Ltd and it was their rights that were impacted. Not sure what you are waffling about "very difficult to argue paying the proper amount of tax is disproportionate", the impact to the Ltd of IR35 determination by a client is usually closure of the business which is a most severe penalty. You are making a mistake in thinking that just because a legal argument has not been brought before then it must be invalid. If you have nothing further of value to add I'll move on and try reaching out to few companies that provide IR35 insurance and see if they have any insight into whether these arguments have been raised.

And you should be more respectful than refer to people who you have no idea what they have done in their life as "average Joe". From your interaction here it is clear who the "average" one is.

Fair enough. Maybe a discussion forum full of contractors might not have been your best first port of call if you are going to get so tetchy about other people putting their non legal opinion/thoughts forward.

[eek]

Barristers don't use limited companies

[NotAllThere]

You are making a mistake in thinking that just because a legal argument has not been brought before then it must be invalid.

And you are making a mistake in thinking that just because a legal argument has not been brought before it has not been considered and dismissed.

And you should be more respectful than refer to people who you have no idea what they have done in their life as "average Joe".

Respect - yeah, that needs to be earned. Getting all tetchy doesn't do that. Quite the opposite.

Anyway, most people posting here are "average Joes". It's no insult to assume you are. It's just probability. If you had listed your qualifications up front that make you non-average, then perhaps the responses would have been different.
TL;DR Please reign your neck in. A conversation can be had, but it requires willingness on both sides not to indulge in

btw eek has weighed in. He does have a huge amount of legal experience and knowledge.

[jamesbrown]

This has been discussed before, many times, admittedly fewer w/r to the latest reforms. It seems unlikely. Here's a recent example (note the reply from Iliketax):

https://forums.contractoruk.com/ir35...-and-ir35.html