Can DV cleared role be out of IR35?

[manclarky]

If only it was that easy. Unfortunately Hector does have cleared people..

Ah, course....shame that!

[Mr.Whippy]

...or looking at it another way.

HMRC: Can you describe your working relationship with Contractor A.
DV cleared site: No. It is classified.

*case closed*

If only it was that easy. Unfortunately Hector does have cleared people..

[northernladuk]

...or looking at it another way.

HMRC: Can you describe your working relationship with Contractor A.
DV cleared site: No. It is classified.

*case closed*

Fabulous!!!

[b0redom]

...or looking at it another way.

HMRC: Can you describe your working relationship with Contractor A.
DV cleared site: No. It is classified.

*case closed*

[SueEllen]

I appreciate I'm not an IR35 guru, but it seems to me that it's just a fudge to say I have a wording in a contract. If Hector looked at it, I'd be very surprised if the wording belied the actuality of the contract and with all the recent blather about "spirit of the law" and "aggressive" tax avoidance I'd be tempted to hedge my bets on the side of being within IR35.

Still, as I said, I'm no guru!

As long as you aren't the only DV cleared person in the country with those skills and the rest of your working practises fall outside IR35 then you don't have a problem.

[northernladuk]

I appreciate I'm not an IR35 guru, but it seems to me that it's just a fudge to say I have a wording in a contract. If Hector looked at it, I'd be very surprised if the wording belied the actuality of the contract

You are correct, the contract has to reflect the working practices to stand up. In reality you could argue sub clauses won't work in most cases as in the JLJ case but that can only be tested at the time it is invoked. It would wrong for a court to judge it invalid just on it's hunch that it might not work.. Now if your client then stands up and says he would never have taken a sub then you are in trouble.

and with all the recent blather about "spirit of the law" and "aggressive" tax avoidance I'd be tempted to hedge my bets on the side of being within IR35.
Still, as I said, I'm no guru!

Looks like you have you answer then...

[manclarky]

I would suggest you read up on IR35 and understand it a little more though.....

I appreciate I'm not an IR35 guru, but it seems to me that it's just a fudge to say I have a wording in a contract. If Hector looked at it, I'd be very surprised if the wording belied the actuality of the contract and with all the recent blather about "spirit of the law" and "aggressive" tax avoidance I'd be tempted to hedge my bets on the side of being within IR35.

Still, as I said, I'm no guru!

[northernladuk]

Of course you can. The DV is a client imposed restriction based on other legal requirements so cannot be classed as client direction and control. It doesn't affect how you work on site. Once you are in then the normal rules of IR35 apply on how you work.

Substitution will be a very grey area but you can demonstrate that given some very strict controls it could still be offered. If the client can't take him due to the restrictions based on DV I don't think that would invalidate it. Just try and word it that if the substitute meets client conditions then it is allowed. The reality of substituting DV is probably very different but it is still offered showing you are a business not a permie.

I would suggest you read up on IR35 and understand it a little more though.....

EDIT : Damn, beaten to it so what Craig said....

[Clare@InTouch]

Of course - having to comply with security measures doesn't mean you're totally controlled in how you do what you do, as long as the control you're under applies to everyone and there's reasons for it.

You could also argue outside if you're able to substitute, even if your pool of substitutes is reduced due to them needing to be cleared too.

It's worth chatting through the situation with an expert so they can assess the level of control in regard to How, Where and When.

[manclarky]

I was wondering if it's at all possible to justify to HMRC that you're outside of IR35 if you're on a project that you had to get DV security clearance for?