Reply to: Am I caught by IR35 or not ?

[northernladuk]

Working practices trump the contract. You started off on completely the wrong track. IR35 is on a contract by contract basis. It has f'all to do with most of the stuff you put.

I'd start by reading the newbie guides to the right and start doing some research. It's not difficult to get a basic grasp of IR35 and other aspects of the way you work you have completely failed to grasp. Hint, you can't opt out of AWR.

Time to get a bit more knowledgeable about what you do IMO.

[Reckoner]

There are (currently) three key "pillars" of IR35 - mutuality of obligation; Supervision, Direction and/or Control; and Right of Substitution - which have little relevance to your list above.

Suggest that you read up about IR35 - there's a guide on the right IR35 Legislation - Advice, Help and Information for UK Contractors , or IPSE have a good guide for members. Get your contract reviewed, and be vigilant in your working practices. Take out insurance.

I think my contract is IR35 friendly:

For Mutuality of obligations it says that the agency are not obliged to offer ongoing contracts to me nor am I obliged to accept such contracts if offered. I am not obliged to make my services available. Specifically both parties declare that they do not wish to create or imply mutuality of obligations whatsoever.

For Control it says the agency shall not control, nor have the right to control as to how my company perform the services. The agency recognises that my company offers specialist services at a high level of expertise and as such I cannot be told how to perform the services or the manner in which they are performed.

For Right of Substitution it says my company shall only utilise the services of suitable and competent personnel in providing the services. My company may enter into any arrangement or agreement or provide any services to any other undertaking or business, provided that such arrangement does not conflict with the interest of the agency.

[Reckoner]

The two things are not related. IR35 depends on your contract and your working arrangements. The agency reporting requirements are a sperate legal requiremtn from HMRC on them.

You should get your contract checked by one of the recommended advisors on here and make sure your working arrangements are such that they don't contradict your contract (assuming it is IR35 friendly, if it isnt get it changed.).

If IR35 & the agency reporting regulations are not related, what are the reporting regulations for ?

[Reckoner]

What do you do? What's your current contract role?

I am an Engineer working at Ford Motor Co.

[Reckoner]

If the answer to all the above questions is yes and that's a genuine reflection of the way that you work and not just what's written into a contract then you will be outside IR35.

I can answer yes to all those questions apart from sending a substitute, although I think my contract is IR35 friendly as it says that "the agency shall only utilise the services of suitable & competent personnel in providing the services".

[LisaContractorUmbrella]

I have been paying myself a salary of £640/month and taking the rest in dividends. I have instructed my accountant to operate my payroll accordingly.

What do you do? What's your current contract role?

[Reckoner]

Given that you don't know whether you're inside or out, how have you been paying yourself for the past 4 months? I assume your accountant does your payroll? In what way have you instructed them to operate your payroll? How much salary are you paying yourself?

I have been paying myself a salary of £640/month and taking the rest in dividends. I have instructed my accountant to operate my payroll accordingly.

[LisaContractorUmbrella]

If the agency offers work can you refuse it? Can you terminate the contract at any time? Could you send in a substitute on your behalf if you weren't able to attend the contract? Are you financially responsible if you make a cock up? Do you provide your own equipment? Do you just get on with the work that you've been contracted to do without needing to be overseen by someone in management?

If the answer to all the above questions is yes and that's a genuine reflection of the way that you work and not just what's written into a contract then you will be outside IR35. If you can answer yes to some then have a read of one of the IR35 guides that are available. If you've been drawing dividends from your company for the last 4 months then I would get reading PDQ

[stek]

Yes you are caught.

Haven't read the OP's post though, just assumed...

[teapot418]

I started working as a Ltd Company contractor for a client via an agency about 4 months ago. Recently I received one of those letters from my agency about the new HMRC Reporting regulations where they ask for personal details for all non-PAYE workers.

I guess this is to make it easier for HMRC to chase IR35. I've read a lot about IR35 and am still not 100% sure if I fall outside or not. I would appreciate opinions whether I'm likely to be caught or not ? Here's my case for falling outside:

I don't get paid for any time off for sickness and holidays.

I don't receive any other employee benefits, e.g. company pension.

I only receive payment once I have submitted an invoice, so the payment terms reflect those that exist between commercial companies rather than those that exist for employees.

I opted out of the Agency Workers Regulations (AWR).

I have to provide public liability insurance & professional indemnity insurance as part of my contract.

I also operate my Ltd Company for other business, e.g. courier work directly, which is not via an agency.

I am VAT registered and submit VAT invoices for payment of my services.

Regards,
Peter

There are (currently) three key "pillars" of IR35 - mutuality of obligation; Supervision, Direction and/or Control; and Right of Substitution - which have little relevance to your list above.

Suggest that you read up about IR35 - there's a guide on the right IR35 Legislation - Advice, Help and Information for UK Contractors , or IPSE have a good guide for members. Get your contract reviewed, and be vigilant in your working practices. Take out insurance.

[northernladuk]

I opted out of the Agency Workers Regulations (AWR).

[northernladuk]

Regards,
Peter

Doesn't the Peter Principle mention something about incompetence? Coincidence?

Another one for General me thinks.

[Pondlife]

Given that you don't know whether you're inside or out, how have you been paying yourself for the past 4 months? I assume your accountant does your payroll? In what way have you instructed them to operate your payroll? How much salary are you paying yourself?

[DaveB]

I started working as a Ltd Company contractor for a client via an agency about 4 months ago. Recently I received one of those letters from my agency about the new HMRC Reporting regulations where they ask for personal details for all non-PAYE workers.

I guess this is to make it easier for HMRC to chase IR35. I've read a lot about IR35 and am still not 100% sure if I fall outside or not. I would appreciate opinions whether I'm likely to be caught or not ? Here's my case for falling outside:

I don't get paid for any time off for sickness and holidays.

I don't receive any other employee benefits, e.g. company pension.

I only receive payment once I have submitted an invoice, so the payment terms reflect those that exist between commercial companies rather than those that exist for employees.

I opted out of the Agency Workers Regulations (AWR).

I have to provide public liability insurance & professional indemnity insurance as part of my contract.

I also operate my Ltd Company for other business, e.g. courier work directly, which is not via an agency.

I am VAT registered and submit VAT invoices for payment of my services.

Regards,
Peter

The two things are not related. IR35 depends on your contract and your working arrangements. The agency reporting requirements are a sperate legal requiremtn from HMRC on them. Your choice is to comply or walk from the contract. The next gig will ask for exactly the same things.

You should get your contract checked by one of the recommended advisors on here and make sure your working arrangements are such that they don't contradict your contract (assuming it is IR35 friendly, if it isnt get it changed.).

[jmo21]

*NorthernLadUK to wardrobe*