Reply to: Early IR35 Determination for 2021...

[northernladuk]

OP, I think you are failing to join the dots here. If the client has decided that your working practices will be inside from April next year, what do you think the chances might be of their offering a robust defence of your current working practices were they to be scrutinised at tribunal? The answer is zero. You would be swinging in the wind unless you had exceptional evidence to the contrary (a contract review is not that thing). The only thing in your favour is the low risk of investigation.

His client thinks the role is inside now. They just don't have to officially state that until next year.

[jamesbrown]

OP, I think you are failing to join the dots here. If the client has decided that your working practices will be inside from April next year, what do you think the chances might be of their offering a robust defence of your current working practices were they to be scrutinised at tribunal? The answer is zero. You would be swinging in the wind unless you had exceptional evidence to the contrary (a contract review is not that thing). The only thing in your favour is the low risk of investigation.

[radish2008]

What's changed that you determine it to be inside now when it was outside at the beginning of this thread?

God I did it again ... edited it this time.

[eek]

No. I determine it to be inside now. After April 2021 any new engagement at current client will be only on an inside basis as per their determination.

What's changed that you determine it to be inside now when it was outside at the beginning of this thread?

[radish2008]

Eh? I thought they were going to determine your role inside? Don't quite understand that statement or how it impacts.

No. I determine it to be outside now. After April 2021 any new engagement at current client will be only on an inside basis as per their determination.

[northernladuk]

No they haven't. They have said that after April 2021 any NEW engagement will be inside.

Eh? I thought they were going to determine your role inside? Don't quite understand that statement or how it impacts.

You're assuming that HMRC will view that as an indication that the current contract is inside and that the client would assist them in that and obviously have no idea of what I do or how I do it. I welcome anyone's opinion but let's not pretend that makes it anything other than that.

Of course HMRC will see it as indication. It's a statement of fact. The role was outside in the contractors opinion. The client states he expects the role being filled to be inside. You're on the backfoot and you are going to have to prove the clients determination is wrong.

But yes, all guessing.

If you can point me at an HMRC investigation where the client worked against it's contractors then fair enough. The GSK case I think was different, HMRC sent letter to the contractors saying they thought they were inside, they didn't contact GSK and ask them to make a determination of inside/outside I don't think.

I noticed there are a few threads on this now so I expect there will be more over the coming months.

We haven't got there yet but didn't HS2 or one of those projects throw all their contractors under the bus?

If I get an outside determination from QDOS now does that indemnify me against any penalties or investigations HMRC might raise in the future ? Presumably they're not going to indemnify your clients after April 21 ?

If QDOS gives you and outside and insures you but the client then states your inside then there is a fundamental change to your situation and they cannot continue to insure you? That said I must admit what QDOS said about the situation last time. I remember they said they wouldn't insure anyone at GSK that bought insurance after the event but that's different. It's something that if you are rely on you need to investigate very very carefully.

[eek]

No they haven't. They have said that after April 2021 any NEW engagement will be inside. You're assuming that HMRC will view that as an indication that the current contract is inside and that the client would assist them in that and obviously have no idea of what I do or how I do it. I welcome anyone's opinion but let's not pretend that makes it anything other than that. If you can point me at an HMRC investigation where the client worked against it's contractors then fair enough. The GSK case I think was different, HMRC sent letter to the contractors saying they thought they were inside, they didn't contact GSK and ask them to make a determination of inside/outside I don't think.

I noticed there are a few threads on this now so I expect there will be more over the coming months.

So you go into the tribunal with HMRC showing the determination for April 2021 as evidence A.

Mr End Client could you tell me what changed in April 2021 that made the role inside IR35?

[radish2008]

But you don't have any other evidence - so it will be your word against the client's and the client has now given you a written viewpoint that they believe the role is inside IR35.

No they haven't. They have said that after April 2021 any NEW engagement will be inside. You're assuming that HMRC will view that as an indication that the current contract is inside and that the client would assist them in that and obviously have no idea of what I do or how I do it. I welcome anyone's opinion but let's not pretend that makes it anything other than that. If you can point me at an HMRC investigation where the client worked against it's contractors then fair enough. The GSK case I think was different, HMRC sent letter to the contractors saying they thought they were inside, they didn't contact GSK and ask them to make a determination of inside/outside I don't think.

I noticed there are a few threads on this now so I expect there will be more over the coming months.

[eek]

Hahah. Ok I won't even edit it now ...

I don't think everyone does independent 3rd party validation. You did and good for you. That doesn't make it essential for everyone.

But you don't have any other evidence - so it will be your word against the client's and the client has now given you a written viewpoint that they believe the role is inside IR35.

[radish2008]

Grabbed quickly - thanks for the confirmation.

But assuming you mean you are outside now - I suspect you can't actually prove your working practices are outside IR35 - because you've already told us you don't do independent 3rd party validation.

Hahah. Ok I won't even edit it now ...

I don't think everyone does independent 3rd party validation. You did and good for you. That doesn't make it essential for everyone.

[eek]

That's the thing with IR35. It's all opinions. I'm happy that I can prove I'm inside now. That's been the same situation since I started contracting.

The clients opinion is also just currently that. An opinion that doesn't legally count (no matter what anybody infers).

In April next year the situation is completely reversed and not mine but every contractors opinion counts for nothing and only the opinion of the client matters, right or wrong. I doubt very much whether any large company will accept the opinion of QDOS but who knows, again that's up to them.

I'll be speaking to the client over the next few days so will keep this thread updated. If anything it will give others things to consider.

Grabbed quickly - thanks for the confirmation.

But assuming you mean you are outside now - I suspect you can't actually prove your working practices are outside IR35 - because you've already told us you don't do independent 3rd party validation.

[radish2008]

Personally I think you are grasping at straws here and applying what you think. That's your prerogative... just some added thoughts though. .

That's the thing with IR35. It's all opinions. I'm happy that I can prove I'm inside now. That's been the same situation since I started contracting.

The clients opinion is also just currently that. An opinion that doesn't legally count (no matter what anybody infers).

In April next year the situation is completely reversed and not mine but every contractors opinion counts for nothing and only the opinion of the client matters, right or wrong. I doubt very much whether any large company will accept the opinion of QDOS but who knows, again that's up to them.

I'll be speaking to the client over the next few days so will keep this thread updated. If anything it will give others things to consider.

[eek]

Let's hope you get an outside SDS delivered at midnight on the day your contract ends then eh ? Although if you're outside now then you'll be outside after April 2021 won't you ? If I get an outside determination from QDOS now does that indemnify me against any penalties or investigations HMRC might raise in the future ? Presumably they're not going to indemnify your clients after April 21 ?

Sorry but what are you talking about? I've now read it 4 times and I don't have a clue what you are trying to say there

For my last contract I had a QDOS contract review before beginning and a check of working practices 1 month after I began. I also left it earlier this year to ensure that there was zero chance of any determination being made (3 weeks later the end client actually issued a blanket ban).

I now own a small consultancy - we don't do inside IR35 work and I will turn down any clients that even insist on a check...

[radish2008]

So how do the post April 2021 working practices differ from what they are now - have they documented what they will look like so that you can compare them to what they currently are?

As you seem to be assuming that they are using hypothetical working practices that change in April 2021 while me and NLUK (among other posters) don't believe there is anything hypothetical here and that the post April 2021 working practices are 100% identical to the current working practices.

And we aren't going to agree here but I wouldn't be happy working with a client who believes I'm inside IR35 if I had been operating as if I was outside IR35. And I start from a far better position than you are in with full QDOS reviews saying I was outside.

Let's hope you get an outside SDS delivered at midnight on the day your contract ends then eh ? Although if you're outside now then you'll be outside after April 2021 won't you ? If I get an outside determination from QDOS now does that indemnify me against any penalties or investigations HMRC might raise in the future ? Presumably they're not going to indemnify your clients after April 21 ?

[northernladuk]

Personally I think you are grasping at straws here and applying what you think. That's your prerogative... just some added thoughts though.

They will deem the ROLE inside. If you are doing the same ROLE you are at risk. Changing a few working practices isn't going to save you. Client says the role is inside, then it's inside. All the rest is just game playing.

My comment about when the SDS applies was a tad tongue in cheek. The client considers the role you are doing now inside so you are at high risk regardless of when it hits. You need to be thinking about action based on that right now. Not when it hits.

You might have insurance in background keeping you safe but will that insurance pay out if you knew the client was going inside 5 months early? I'd be very surprised. Insurances says you must inform them if something changes. The client admitting the role is inside is a pretty massive change.

How will HMRC know anything about your situation? Quick letter to your client GSK style, either before April, or after and everything you are assuming or thinking is going to save you will start to unravel.

Argue our points by all means, we don't really know so you are correct to do so but be delusional about the facts of the case. Not saying you are there yet but we've been here before with a poster trying to argue their view on the situation when that view doesn't stack up against the facts given.