Reply to: IR35 Contract Review Strangeness.

[LisaContractorUmbrella]

In my experience agency contracts really don't vary that much, what will is the assignment schedule that usually accompanies them; maybe this made the difference between the pass/fail dichotomy??

[TheCyclingProgrammer]

I find these comments rather strange, as I'm sure you guys are aware that an IR35 contract review offers a professional opinion on your situation based on limited information (especially limited when the working practices are not reviewed). It's for guidance only. It's impossible to definitively state a position. Also, as far as I recall, QDOS offer a borderline fail and borderline pass scenario. We may all hope for perfect consistency among reviewers in how they evaluate the risks, but this is not the reality of IR35, especially when cases are borderline, and you will get differing opinions among reviewers from the same company and from different companies, as has been demonstrated in this forum several times before.

WHS. A contract review and working practice assessment will always be, at the end of the day, a risk assessment more than anything else. Nobody can definitively say that you are inside or outside IR35 - only a tribunal following a challenge by HMRC can do this.

[jamesbrown]

Yeah, but they're not going to re-review the first one as that's done and dusted and no doubt been submitted & accepted.

But what if they (ahem) cocked up the 2nd assessment and it was actually a 'pass'?...that's where my money's going...

I find these comments rather strange, as I'm sure you guys are aware that an IR35 contract review offers a professional opinion on your situation based on limited information (especially limited when the working practices are not reviewed). It's for guidance only. It's impossible to definitively state a position. Also, as far as I recall, QDOS offer a borderline fail and borderline pass scenario. We may all hope for perfect consistency among reviewers in how they evaluate the risks, but this is not the reality of IR35, especially when cases are borderline, and you will get differing opinions among reviewers from the same company and from different companies, as has been demonstrated in this forum several times before.

[SteelyDan]

I'd suggest its like anything that is given in error, the first contract assessment could be wrong and doesnt represent the true facts. I'd wager HMRC would ignore the fact if it came to an IR35 investigation.

Its one QDOS are going to have to sort out but they cannot give an IR35 pass on the second contract if the first contract is really an IR35 fail.

Yeah, but they're not going to re-review the first one as that's done and dusted and no doubt been submitted & accepted.

But what if they (ahem) cocked up the 2nd assessment and it was actually a 'pass'?...that's where my money's going...

[BolshieBastard]

Well, if the other one has been given the thumbs up, and the other contractor has submitted that review as part of his BET, then how can they now undo that?
Can't see the other contractor saying, 'oh hang on m8, I'm actually inside IR35 so can you tax me accordingly'...

PS: Welcome bk BB

I'd suggest its like anything that is given in error, the first contract assessment would be wrong and doesnt represent the true facts. I'd wager HMRC would ignore the fact if it came to an IR35 investigation.

Its one QDOS are going to have to sort out but they cannot give an IR35 pass on the second contract if the first contract is really an IR35 fail.

[SteelyDan]

Why? It could be that the other contract should have been a 'caught.'

Well, if the other one has been given the thumbs up, and the other contractor has submitted that review as part of his BET, then how can they now undo that?
Can't see the other contractor saying, 'oh hang on m8, I'm actually inside IR35 so can you tax me accordingly'...

PS: Welcome bk BB

[BolshieBastard]

I'll put money on this now getting thru IR35

Why? It could be that the other contract should have been a 'caught.'

[SteelyDan]

We always strive to be as consistent as possible when we look at contracts, however invariably there will be a slight difference in opinion between the consultants. If you would like to send your contract directly to me; Kate Hardy at [email protected] I would be more than happy to take a look at this for you.

I'll put money on this now getting thru IR35

[Kate at Qdos]

Contract Review Inconsistency

We always strive to be as consistent as possible when we look at contracts, however invariably there will be a slight difference in opinion between the consultants. If you would like to send your contract directly to me; Kate Hardy at [email protected] I would be more than happy to take a look at this for you.

[jamesbrown]

Sorry for the lack of detail have had a beverage or two. Side by side comparison, same contract to the letter. Neither has had a working practises review. I will drop qdos a email though just to hear their thoughts on it.

It's the first time I have had a contract ir35 reviewed so presumed it would fly through given the other contractors ones had.

Not slating qdos as the points they raised are perfectly valid, just wondered why it wasn't noticed on the other review.

It could be that one reviewer missed something. However, it's also possible that they came to a different subjective interpretation of the evidence. Afterall, there's a reasonable element of subjectivity associated with IR35, which is only exaggerated by looking at the contract alone. The difference between a borderline pass and a borderline fail may not be great, although one reviewer indicating a strong pass and another indicating a strong fail would raise questions.

[TheLordDave]

Sorry for the lack of detail have had a beverage or two. Side by side comparison, same contract to the letter. Neither has had a working practises review. I will drop qdos a email though just to hear their thoughts on it.

It's the first time I have had a contract ir35 reviewed so presumed it would fly through given the other contractors ones had.

Not slating qdos as the points they raised are perfectly valid, just wondered why it wasn't noticed on the other review.

[tractor]

As part of my new contract (public sector) I have to 'prove' my IR35 status. In the guidance it is suggested that a QDOS contract review would be sufficient evidence of being outside IR35.

So, I sent my contract off to QDOS who failed it based on some substitution clauses. Another contractor on the team with the exact same contract, same agency ect, sent his off prior to me. QDOS have passed his contract.

As much as the whole IR35 thing is an utter farce, I see recommendations to have a contract review repeatedly, yet if the same contract can be judged both a pass and fail I am slightly dubious that it makes any difference what so ever.

Of course the agency wont change the contract.

Have you compared the two contracts side by side? If so and they are identical, you need to ask this question of QDOS. If you haven't it is likely that there are some material differences. Whichever way it is, you cannot ask the question until you have compared the two.

[jamesbrown]

You can be outside IR35 without having any RoS clause so I don't see why a poor/fettered clause should be an automatic fail. RoS clauses are overrated as an IR35 defence IMO - a good unfettered clause can certainly be used as a solid defence unless it can be proved to be a sham clause but I imagine that many contractors have RoS clauses that are ineffective.

Can you show insufficient lack of MOO or D&C? To me this is more indicative of whether you are inside or IR35 or not but you only need one of these defences. A working practices assessment should certainly help with the latter; was there anything else in the contract that QDOS deemed as a negative?

I completely agree with this. As we don't know the details, it's difficult to comment on the reviewer's thoughts. However, I suspect that a contract-only review, without a thorough review of your working practices, is more liable to being failed on the absence of an unfettered RoS, depending on the risk-tolerance of the reviewer. You really need to have a thorough review of your situation rather than one of these quick, contract-only, reviews (which I personally feel are very limited). Indeed, depending on the precise nature of the work you do, the core elements may be assigned different weightings. If the complete review indicates, for example, that you are extremely strong in terms of lack of D&C and other elements, then the absence of an unfettered RoS should not prevent a strong pass, although it would be a negative in general.

[SteelyDan]

[QUOTE=TheLordDave;2003791]Another contractor on the team with the exact same contract, same agency ect, sent his off prior to me. QDOS have passed his contract.QUOTE]

So, did you take this up with QDOS?

[TheCyclingProgrammer]

You can be outside IR35 without having any RoS clause so I don't see why a poor/fettered clause should be an automatic fail. RoS clauses are overrated as an IR35 defence IMO - a good unfettered clause can certainly be used as a solid defence unless it can be proved to be a sham clause but I imagine that many contractors have RoS clauses that are ineffective.

Can you show insufficient lack of MOO or D&C? To me this is more indicative of whether you are inside or IR35 or not but you only need one of these defences. A working practices assessment should certainly help with the latter; was there anything else in the contract that QDOS deemed as a negative?