Reply to: IR35 - Retrospective Investigations

[northernladuk]

I suspect if the contract is sound and they're dealing with NorthernladUK, it probably won't go any further.

IR35 defense sorted I think....

[SueEllen]

I suspect if the contract is sound and they're dealing with an IR35 legal expert, it probably won't go any further.

^^^ This

Make sure you have tax investigation insurance and get your contracts reviewed.

[BlasterBates]

The case will be judged on the evidence. How contractors are dealt several years is not relevant. If HR happen to say that contractors were inside IR35 during the year in question that's bad. If no one is around at the client who was there then the only evidence will be what you tell them and that's what the judge will accept. However if an HMRC inspector wanted to, I'm sure he could track down the previous PM. It would probably just be a few phone calls and bit of surfing on LinkedIn. I suspect if the contract is sound and they're dealing with an IR35 legal expert, it probably won't go any further.

[northernladuk]

Doesn't anyone else keep evidence that they are outside of IR35 for every contract they've been on?

I have every email when I informed the PM that I was unavailable for x days, when I updated every work schedule, when I terminated a contract and kept every contract review.

I make sure that I have evidence showing where I was not thought of as one of the team.

Same and even scan my pass to prove it was a contractor pass. A nice one is the mails that explain I'm not invited to company gatherings, work and social, because I'm a contractor. That will do nicely thank you.

[cojak]

My worry was that they would just decide I was IR35 caught & it would be up to me to prove the negative.

A bit hard if there's nobody there anymore.

Doesn't anyone else keep evidence that they are outside of IR35 for every contract they've been on?

I have every email when I informed the PM that I was unavailable for x days, when I updated every work schedule, when I terminated a contract and kept every contract review.

I make sure that I have evidence showing where I was not thought of as one of the team.

[centurian]

Which they could do by just talking to HR who will no doubt say something along the lines of "This is how we treat our contractors... <insert IR35 unfriendly guff here>" and decide that this applied to my own situation even though it was some years earlier.

Well that is one of the dangers of IR35 - that you are partially at the mercy of a snivelling middle manager who has never met you - landing you deep in it.

Rarely happens though. ClientCo's tend to get much more defensive with HMRC - worried that the taxman will come chasing after them instead. They make a calculated risk and conclude it's better to concur with the contractors view, rather than opening up that can of worms.

But you're posing the question "what will HMRC think...." - how the hell can anyone say what will be in the mind's of an HMRC inspector. Who know's what goes through their heads. There's no case law applicable to your scenario as far as I am aware, which is about as much as anyone can say about it.

[Martin Scroatman]

But they also have to prove working practices to accuse you with which will end up being as difficult as your defense.

Which they could do by just talking to HR who will no doubt say something along the lines of "This is how we treat our contractors... <insert IR35 unfriendly guff here>" and decide that this applied to my own situation even though it was some years earlier.

[northernladuk]

My worry was that they would just decide I was IR35 caught & it would be up to me to prove the negative.

A bit hard if there's nobody there anymore.

But they also have to prove working practices to accuse you with which will end up being as difficult as your defense.

[Batcher]

I'd say as long as the contract was fine they will pick easier targets, and you can relax, especially if you got a confirmation of arrangements.

[LondonManc]

Which is my whole argument against SDC being solely used in T&S and IR35 legislation

Up there with "nobody has died, so prove I farted".

[LisaContractorUmbrella]

The good British mantra of "innocent until proven guilty".

Can you prove something that didn't happen actually didn't happen?

Which is my whole argument against SDC being solely used in T&S and IR35 legislation

[LondonManc]

My worry was that they would just decide I was IR35 caught & it would be up to me to prove the negative.

A bit hard if there's nobody there anymore.

The good British mantra of "innocent until proven guilty".

Can you prove something that didn't happen actually didn't happen?

[Martin Scroatman]

It's that hypothetical any answers you get won't really be worth anything. We could take a guess for you but not sure what good that is.

My guess is they would loom at each case on its merits. If there is no one to question and it's going to be difficult to prove they will move on to one they have a better chance of winning. But this is HMRC we are talking about.

My worry was that they would just decide I was IR35 caught & it would be up to me to prove the negative.

A bit hard if there's nobody there anymore.

[Retro]

I wasn't aware HMRC could do anything retrospectively.

That's very amusing but I can see the tongue through your cheek.

[BrilloPad]

I wasn't aware HMRC could do anything retrospectively.