Reply to: Legal expertise of IR35 contract reviewers

[pr1]

It is unfortunate that it is not possible to have a clear set of guidelines on such an important matter.

if they did it'd make it even easier to loophole through it and they'd catch no one, at least this way they can catch some people that can't/don't/won't afford to get a legal defence

[mudskipper]

It is unfortunate that it is not possible to have a clear set of guidelines on such an important matter.

HMG agree. Hence the IR35 discussion/consultation. Sounds great in principle...

[expat]

Either way, he is only a reviewer rendering an opinion (in this case, not a very supportable one perhaps, but hey...). It is up to you to decide the reality of the situation, which is why all contractors need a degree of knowledge in the complications of IR35. After all, it's your tax bill at stake, nobody else's.

FWIW the thee big people in the game - Accountax, B&C and QDOS are all the product of ex-HMRC inspectors who genuinely understand the rules. It's the various freehand interpretations of those rules through various cases - some of which were made by judges who don't know the rules that well - that leads to confusion.

My reviewer was one of those mentioned. I think I have a degree of knowledge in the complications of IR35, which is why I am not happy that the review was definitively correct. I could have taken it as only an opinion but on a cost/benefit basis I assessed the cost of the downside as being too high, so I decided to act as if inside IR35. Near to retirement, I don't want to find myself a few years down the line facing an IR35 investigation with only a negative review under my belt.

It is unfortunate that it is not possible to have a clear set of guidelines on such an important matter.

[malvolio]

Either way, he is only a reviewer rendering an opinion (in this case, not a very supportable one perhaps, but hey...). It is up to you to decide the reality of the situation, which is why all contractors need a degree of knowledge in the complications of IR35. After all, it's your tax bill at stake, nobody else's.

FWIW the thee big people in the game - Accountax, B&C and QDOS are all the product of ex-HMRC inspectors who genuinely understand the rules. It's the various freehand interpretations of those rules through various cases - some of which were made by judges who don't know the rules that well - that leads to confusion.

[expat]

I've had exactly as you describe too, could even be the same reviewer. Despite being brought in to deliver a specific package of work, on my own, from start to finish. Was a little miffed that the summary judgement on this aspect of working arrangements was made only after I had started on site.

And by the way I am not sure how that puts one inside IR35. It is IMHO not an aspect of working arrangements. I wasn't asked whether I worked in the same way as a permanent employee.

Perhaps the problem comes from a different understanding of the phrase "do the same job". I took it to mean "produce the same technical result" since my work is technical, but perhaps the interviewer thought he was asking whether I worked in the same way as existing permanent employees. I would have answered "No" to that question if it had been asked.

[Contreras]

Yes, but the reviewer judged that my contract itself was IR35-friendly. It was other aspects that led him to judge me inside IR35.

One single thing particularly concerned him: when he asked me whether the client company had permanent employees who could do my job, I said "Yes". The client was a huge vendor. It was IMHO inconceivable to say that they don't have many people who could do my job. But apparently that put me inside IR35; for that reviewer anyway.

I've had exactly as you describe too, could even be the same reviewer. Despite being brought in to deliver a specific package of work, on my own, from start to finish. Was a little miffed that the summary judgement on this aspect of working arrangements was made only after I had started on site.

[expat]

Different agency or contracts?

Yes, but the reviewer judged that my contract itself was IR35-friendly. It was other aspects that led him to judge me inside IR35.

One single thing particularly concerned him: when he asked me whether the client company had permanent employees who could do my job, I said "Yes". The client was a huge vendor. It was IMHO inconceivable to say that they don't have many people who could do my job. But apparently that put me inside IR35; for that reviewer anyway.

[SueEllen]

In fact, ever had a blood test from a doctor rather than a nurse that does them all day?

It depends on the doctor.

However you can guarantee most nurses will not hurt you finding that vein.

[BolshieBastard]

I'm not happy about it since one such well-known review company judged me in IR35 while the same company judged 2 of my colleagues on the same team outside IR35

Put one contract in front of 10 qualified lawyers and you'll get 10 different opinions!

On the other hand HMRC aren't legal experts in IR35 even though they wrote the bloody thing

Very true!

Have you seen how much a KPMG minion costs???

KPMG are setting up a new IT Consultancy division. However much they charge, there'll be plenty of companies who'll use them rather than take on independent contractors especially if \ when all this 'supervision' for travel comes in with the possibility they'll be liable.

[Underbase]

Not at all.

If I need blood tests, I don't complain if a nurse does it rather than a doctor. As long as an expert is directing, there are plenty of tasks that can be done by those who don't have the absolute highest level of expertise.

In fact, ever had a blood test from a doctor rather than a nurse that does them all day? I would rather have the nurse do it anytime.

[pr1]

Not at all.

If I need blood tests, I don't complain if a nurse does it rather than a doctor. As long as an expert is directing, there are plenty of tasks that can be done by those who don't have the absolute highest level of expertise.

surely you're agreeing with me then?

[WordIsBond]

same logic as why a clientco should get in a kpmg minion than an independent contractor then

Not at all.

If I need blood tests, I don't complain if a nurse does it rather than a doctor. As long as an expert is directing, there are plenty of tasks that can be done by those who don't have the absolute highest level of expertise.

[The Spartan]

I'm not happy about it since one such well-known review company judged me in IR35 while the same company judged 2 of my colleagues on the same team outside IR35

Different agency or contracts?

[WordIsBond]

Qdos' two main founders were ex-Revenue and ex-Customs inspectors, and the 'poacher turned gamekeeper' recruitment approach has served us very well.

I suspect HMRC would say they are gamekeepers turned poachers....

[Qdos Contractor]

Whilst we do have a legal team (regulated by the Solicitors Regulation Authority) who provide reviews of legal terms within a contract, IR35 is a tax issue and our IR35 specialists have years of experience handling investigations. We employ a number of ex-HMRC inspectors who will have a far better grasp of how IR35 works in practice than a lawyer. Reviewing a contract for IR35 is all about how the terms will be interpreted by HMRC in an enquiry.

Qdos' two main founders were ex-Revenue and ex-Customs inspectors, and the 'poacher turned gamekeeper' recruitment approach has served us very well.