Reply to: Fellow contractors attitutes to IR35

[oracleslave]

But surely that's nuts? All you can do is go on the information which is available to you at the time? Surely if you keep email evidence from an agency saying that the T+Cs are mirrored, you should be OK?

It's only fair

[b0redom]

And the bit which is beyond insanity, is that you have to make a decision on your IR35 status which in part is dictated by a contract you've never seen (and have no right to see).

But surely that's nuts? All you can do is go on the information which is available to you at the time? Surely if you keep email evidence from an agency saying that the T+Cs are mirrored, you should be OK?

[malvolio]

Would the PCG support something like this? My view is that the agency has the responsibility - they write both contracts, and will not allow me to see the Agency / Client contract. If they ask me to sign a contract in the knowledge that the terms cannot be met, then that is a sueing issue for me

Pete

They had a good test case recently, but the poor guy had just come out of a four year IR35 investigation and lost and he wasn't really minded to start all over again. Can't say I blame him, myself.

Thing is, the PCG can't do this in isolation, it has to come from an individual: all PCG (or any similar body) can do is provide financial and legal support to run the case.

[Burrow01]

Leaving IR35 aside for a moment, my real concern is that we are routinely asked to sign a legally binding contract containing commitments on behalf of the agency that they not only have no intention of honouring, they are actually fully aware that they are incapable of honouring under the terms of the superior contract they have with the end client. Which rather calls into question the whole way in which our market works.

But until a contractor sues an agency for misrepresentation, that particular nonsense will persist.

Would the PCG support something like this? My view is that the agency has the responsibility - they write both contracts, and will not allow me to see the Agency / Client contract. If they ask me to sign a contract in the knowledge that the terms cannot be met, then that is a sueing issue for me

Pete

[malvolio]

Leaving IR35 aside for a moment, my real concern is that we are routinely asked to sign a legally binding contract containing commitments on behalf of the agency that they not only have no intention of honouring, they are actually fully aware that they are incapable of honouring under the terms of the superior contract they have with the end client. Which rather calls into question the whole way in which our market works.

But until a contractor sues an agency for misrepresentation, that particular nonsense will persist.

[VectraMan]

I may be being very naive, but putting myself in their position, if I employ someone to provide a service to ClientCo, surely I can stipulate any terms between MyCo and said employee ie you must turn up in a chicken costume on a Wednesday and these can be completely different to the conditions between MyCo and ClientCo.

You're making the mistake of using logic.

It's not about enforcing the contract. The two contracts could contradict each other, which would be a problem if there was any conflict and the agent could be sued as a result. But that doesn't matter for IR35. IR35 is about looking at the relationship you have with with client, and if one says "no substitution" and the other says "yes substitution" then a substituion couldn't happen.

And the bit which is beyond insanity, is that you have to make a decision on your IR35 status which in part is dictated by a contract you've never seen (and have no right to see).

[babason]

Has anyone ever been found guilty based on the agreements not being back to back? I would have thought that as I'm providing a service to PimpCo for ClientCo, it doesn't matter a jot what their terms are.

There was a recent case where a clause in the service provider - agency contract allowing substitution was overidden by the fact that substitution would not be allowed in the agency - client contract. The substitution clause was deemed a sham.

Personally, I think there is a bigger danger of D&C in the agency - client contract overiding sensible non D&C clauses in the service provider - agency contract.

Having said that a mirror of terms is unlikely. What I'm trying to get is something along the lines of 'nothing in the agency - client contract will invalidate the terms of this contract' which I believe was suggested by malvolio...

[b0redom]

Has anyone ever been found guilty based on the agreements not being back to back? I would have thought that as I'm providing a service to PimpCo for ClientCo, it doesn't matter a jot what their terms are.

I may be being very naive, but putting myself in their position, if I employ someone to provide a service to ClientCo, surely I can stipulate any terms between MyCo and said employee ie you must turn up in a chicken costume on a Wednesday and these can be completely different to the conditions between MyCo and ClientCo.

Surely the charge out rate is an example of this?

[a7awo]

If this is the case then does anyone know what's good/wrong with 'back-to-back'? based on the fact if the contract is sound then all well, surely? or any I missing something?

[Platypus]

then put you in prison.

Rubbish! If you can afford to pay back-tax, pay it. If not, go bust. Prison doesn't even come into it.

[ctdctd]

Sorry, don't think I have seen this in any of my 3 contracts ... What does the term/clause 'back-to-back' mean?

I think it means the terms in yourco > Agent are mirrored in Agent > Client contracts.

[a7awo]

Sorry, don't think I have seen this in any of my 3 contracts ... What does the term/clause 'back-to-back' mean?

[VectraMan]

So supposing you were investigated by the IR over IR35 what would happen worst and best case scenarios?

Best: They give up early, and you keep all the money.
Worst: They make your life hell for 4 years, then put you in prison.

[gtr]

So supposing you were investigated by the IR over IR35 what would happen worst and best case scenarios?

[Andy2]

I have seen lots of Auzzies using offshore schemes and none of them were ever caught.Makes you wonder why you bother paying proper tax