Reply to: The HMRC online test for IR35

[northernladuk]

Maybe the client would take HMRC on? A flawed tool costing them money because it will increase costs long-term. Their flexible skilled labour force will start to disappear as they go perm. Doesn't seem like any winners other than HMRC's subversion of IR35.

Again no. It's so confusing for them so I doubt they will understand it enough to dare and they won't have an appetite to HMRC on over your tax status anyway. Means nothing to them.

[poorautojobber]

Not quite. You'll have to take your client to court.. Not many people willing to do that.

Maybe the client would take HMRC on? A flawed tool costing them money because it will increase costs long-term. Their flexible skilled labour force will start to disappear as they go perm. Doesn't seem like any winners other than HMRC's subversion of IR35.

[northernladuk]

I'll try next time! Must try harder. This is the second time you've picked me up on this.

It's a pain on the mobile app as you have to scroll up to see what you've put and then down again to read the context, particularly when you are quoting long posts. Wouldn't really be a problem on a PC.

[Gomez]

Can you respond after the quote, not before it please.

I'll try next time! Must try harder. This is the second time you've picked me up on this.

[jamesbrown]

Stop being difficult.

Well, that told me.

Stop being difficult.

[SueEllen]

Stop being difficult.

Sure.

[jamesbrown]

Sure.

Can you respond after the quote, not before it please.

[northernladuk]

Can you respond after the quote, not before it please.

[Gomez]

One thing thats been overlooked here are the financial risk type questions that are asked. Providing evidence of financial risk was the difference betwen in and out on a contract that I am involved with. Like the poster says, very difficult to dodge the client being able to reject a substitute question. Financial risk does not include expenses incurred whilst staying away from home so I came up with training expenses (£3k course) and the costs incurred monthly by having to pay Crown Commercial Services a percentage of the monthly invoice value as my company won the work through one of the Digital Marketplace frameworks.

I'm not Public Sector but had a bash at this for fun just now:

https://www.tax.service.gov.uk/check...r-tax/cluster/

Of course the test has been loaded so that it's difficult to escape IR35 and, given the way the questions are specified, I imagine 90% of contractors would fail.

The substitution one is a good example of heads I win tails you lose:

If the worker's business sent someone else to do the work (a substitute) and they met all the necessary criteria, would the end client ever reject them?
(a) Yes - the end client has the right to reject a substitute for any reason, including if it would negatively impact the work
(b) No - the end client would always accept a substitute who met these criteria

Even the IPSE contract specifies that Subs can be introduced by the Consultant but "with prior written approval of the client". So this means that you would always have to answer (a) above.

Having run through a number of iterations, it seems that you have to answer 3 or 4 of the questions very specifically to escape IR35. A sure-fire win is if you can answer (b) on the Substitution question above, and better of course if you have actually subbed someone in. The questionnaire stops there: you win.

Another one is if you display that you decide how the work is done, without any input from the client. It helps if your work is specialised so that no one else at client co understands what you do.

Doing work outside the remit of your contract - without getting a new contract/agreement agreed - is a big No No.

It's equally important to be able to work to your own schedule (working hours) and not be told by the client that you'll be working specific hours. This if often difficult if you have to cover normal business hours of say 9-5.

Having the choice of where to work is a good one too.

I'm sure most of us here are clued up on IR35, Substitution and SDC. I just found it interesting to take a shot at the test and just about get through without falling foul of IR35 - and this is after, in my mind, I am way clear of it (specialised tech, work where/when I choose, no SDC...but no Sub put in yet).

Anyone else had a go?

[northernladuk]

Not quite. You'll have to take your client to court.. Not many people willing to do that.

[poorautojobber]

Is anyone looking to challenge the CEST tool legally. Looks like it's built on sand one good kick and it'll all fall apart. Public sector seem to not want to take on HMRC. Case law says it's wrong so can't see why it hasn't been challenged you can't assess working practices on a one size fits all approach. I'm no programmer but it think it could come up with something better!

[SueEllen]

It's not quite the same though is it? The level of service sending one cleaner weeks 1-10, and another cleaner on week 11 would pretty much be the same right?

If I'm working on a project for 10 weeks, and happen to send in someone else on a Monday because I've taken a long weekend. You think the person is really gonna get anything at all done on that day?

Depends.

I've worked along side contractors who have subbed like that.

Others do a 2-5 day handover.

[Fred Bloggs]

It's not quite the same though is it? The level of service sending one cleaner weeks 1-10, and another cleaner on week 11 would pretty much be the same right?

If I'm working on a project for 10 weeks, and happen to send in someone else on a Monday because I've taken a long weekend. You think the person is really gonna get anything at all done on that day?

Time is up. You're a temp who isbeing paid via a Ltd Co to reduce your tax burden. Time to cough up and face the facts. You've had a good run which should really have ended in 2000 but didn't. Largely due to the inability to see through all the problems defining what you really are then making it stick. Now, the game is up. Eh?

[l35kee]

Ahh, Yeah, if you hire "Steve Jones the builder" but if you hire "SJ Construction Limited" they could send any of their employees round to do the work...

Another way to look at it, I have a cleaner because Im quite lazy... Its been the same lady coming out for the last 2 years EXCEPT for the days where shes on holiday or ill and the company sends a different cleaner - they dont even ask - they just send someone with the right skills to clean the house.. The problem is that clients dont think like this, they dont see us as suppliers they pretty much think of us as temps..

It's not quite the same though is it? The level of service sending one cleaner weeks 1-10, and another cleaner on week 11 would pretty much be the same right?

If I'm working on a project for 10 weeks, and happen to send in someone else on a Monday because I've taken a long weekend. You think the person is really gonna get anything at all done on that day?

[Snarf]

The sub thing really ****s me off. When I hire my builder, I expect him to be doing the majority of the work. If he calls me and says "I'm going to be ill, do you mind if I send my mate Dave round" and I say "Actually, I'd rather wait and you do it" does this mean I now employ him?

It's a ******* joke.



This is where I'm lucky - because I'm a specialist, I get to actually wear the consultant badge most of the time.

Ahh, Yeah, if you hire "Steve Jones the builder" but if you hire "SJ Construction Limited" they could send any of their employees round to do the work...

Another way to look at it, I have a cleaner because Im quite lazy... Its been the same lady coming out for the last 2 years EXCEPT for the days where shes on holiday or ill and the company sends a different cleaner - they dont even ask - they just send someone with the right skills to clean the house.. The problem is that clients dont think like this, they dont see us as suppliers they pretty much think of us as temps..