Reply to: Work in Banking? Don't worry about the blanket ban you were probably inside all along

[Paralytic]

Can you infer that they have parked or put on hold any thing about previous years? I dont know what the "HMRC Enquiries section" means in this context

Surely you were here long enough with your previous account to work this out? It's this forum

https://www.contractoruk.com/forums/...eme-enquiries/

[NowPermOutsideUK]

Wow what a thread. Thank you op for posting this and for all the replies

One thing not covered in this discussion is how far they can go back. How many years can they open up an investigation. From reading this anyone who has worked in finance outside ir35 needs a good dose of luck

Can you infer that they have parked or put on hold any thing about previous years? I dont know what the "HMRC Enquiries section" means in this context

Also HMRC have plenty of time to kick off these cases. As you will see in the HMRC Enquiries section they are only now kicking off cases relating to 2015-16.

[northernladuk]

This honouring thing bugs me. A contract is a legal document which someone signs. HMRC have somehow managed to convince orgs that they can agree something in writing and change their mind later verbally and that's somehow ok. That's not how contracts generally work!

It is when the reality of the situation doesn't match the contract.

[mockedguy]

This honouring thing bugs me. A contract is a legal document which someone signs.

By her logic they would judge every contract as Inside. A nice little earner for them.

I was on my last email exchange with her before I was going to lodge a complaint with IPSE that the service was a waste of money if they are going to use that sort of reasoning, when she changed it to Outside.

The main point of getting a review, was so I could show an attempt at due diligence and that I had paid for professional experts to check it was Outside (if I ever needed it).

[LondonManc]

That's my point. There aren't many walks of life where one party can decide to overwrite a contract quite as easily as in an IR35 case!

I've known a contractor threaten to walk because their working practices and contract weren't being adhered to. Sometimes it's better to walk than be walked over and dragged inside IR35.

[youngguy]

Actually, the working practices can override the written contract. You would need to contest any variation to the written contract, and not accept any variation, through deed, or practice.

That's my point. There aren't many walks of life where one party can decide to overwrite a contract quite as easily as in an IR35 case!

[Scruff]

This honouring thing bugs me. A contract is a legal document which someone signs. HMRC have somehow managed to convince orgs that they can agree something in writing and change their mind later verbally and that's somehow ok. That's not how contracts generally work!

Actually, the working practices can override the written contract. You would need to contest any variation to the written contract, and not accept any variation, through deed, or practice.

[eek]

This honouring thing bugs me. A contract is a legal document which someone signs. HMRC have somehow managed to convince orgs that they can agree something in writing and change their mind later verbally and that's somehow ok. That's not how contracts generally work!

Um, have you seen the contract between your agency and your end client? It may not match your contract that much...

[youngguy]

she said it was because there was no evidence the client would honour the 'right to substitution'. I argued, that its in the contract, but she said I would need to ask them after I start..

This honouring thing bugs me. A contract is a legal document which someone signs. HMRC have somehow managed to convince orgs that they can agree something in writing and change their mind later verbally and that's somehow ok. That's not how contracts generally work!

[LondonManc]

I disagree. They won't go after those that are outside if they've got CEST tool approval, working practices, QDOS insurance, etc. The client is liable so they won't be going after the contractor at all.

HMRC will have backlog for last few years to work through; those working for clients who blanket banned will almost certainly find themselves targetted. Sound strategy for contractors to take end clients names off social media accounts...

We need to be clear on your term here; I'm assumed by blanket ban that you mean PSCs and moving contractors to umbrellas rather than an entire contractor ban. If so, I'd agree, although you can still be through an umbrella company and outside IR35.

[perplexed]

I've paid for IPSE's contract review experts to do an IR35 review of contracts a few times. The last one they did last year they advised it as Inside. When I spoke with the person who did it, she said it was because there was no evidence the client would honour the 'right to substitution'. I argued, that its in the contract, but she said I would need to ask them after I start... which makes it a catch-22 situation...and with that argument all would be Inside. After I started I asked and they said they would, so I went back after the reviewer and (after having to twist her arm hard) changed their advise to Outside.

Surely mitigation would be that client failing to honour contractual obligations, meaning your company could issue notice?

[mockedguy]

Was Mr Lee being backed by QDOS or IPSE? I wonder what they make of this?

I've paid for IPSE's contract review experts to do an IR35 review of contracts a few times. The last one they did last year they advised it as Inside. When I spoke with the person who did it, she said it was because there was no evidence the client would honour the 'right to substitution'. I argued, that its in the contract, but she said I would need to ask them after I start... which makes it a catch-22 situation...and with that argument all would be Inside. After I started I asked and they said they would, so I went back after the reviewer and (after having to twist her arm hard) changed their advise to Outside.

[fidot]

Lots of scenarios where the company only wants a specific individual to work on it.

Disagree with this. Firstly, the client wants the work done. Secondly, they interview and decide upon who they think is best candidate available at that time.
Now, if that first choice leaves part way through the project, does it stop? No, the client will find someone else.

Yes clients may have a preference for a particular candidate but not to the extent of canning a project if he/she is not available.

[perplexed]

Kinda blows your RoS out of the water though doesn't it.

Pretty much as HMRC will rely upon client perception rather than any contract / contracted working practices.

I've seen some want unfettered RoS which I find ridiculous. Any substitute has to have the skills to perform the service required, not like I'd ask a homeless guy to substitute in on a contract and expect the client to allow them on site for example.

[northernladuk]

Sure you can still be outside. Lots of scenarios where the company only wants a specific individual to work on it. It's quite normal for a client to request a specific individual works on whatever contracted works. It doesn't mean the company has any control over the individual and they can still be working to a SOW.

Kinda blows your RoS out of the water though doesn't it.