Reply to: HMRC deliberately omitted MOO from ESS/CEST

[meanttobeworking]

This. If we are going to take HMRC on over this we need to understand it better ourselves.

What kind of things do you look out for then, other than what’s been mentioned? What would be good evidence to keep, or situations to avoid?

[northernladuk]

It's not about "lack", it's about an "irreducible minimum". There will always be a degree of mutuality or anarchy would reign*; the question is about the balance between the two parties' needs. The ability to determine where you sit to deliver the work is one (and only one) example of a wider picture.


* for example, you work, you invoice, the client says "CBA to pay that, sorry"....

This. If we are going to take HMRC on over this we need to understand it better ourselves.

[malvolio]

So in your view, how would one demonstrate lack of MOO?

It's not about "lack", it's about an "irreducible minimum". There will always be a degree of mutuality or anarchy would reign*; the question is about the balance between the two parties' needs. The ability to determine where you sit to deliver the work is one (and only one) example of a wider picture.


* for example, you work, you invoice, the client says "CBA to pay that, sorry"....

[meanttobeworking]

Nope because 2 is no different from a zero hour contract which would be under PAYE....

So in your view, how would one demonstrate lack of MOO?

[malvolio]

Agreed. To be fair I’m talking about private sector IR35 defence, and this is in the public sector area of the forum, so I probably should have been clearer.

Nevertheless (and this answers your earlier question btw) the debate is not about what HMRC believe to be the situation, it's about what the laws says the situation is. If you appeal an initial decision of inside to firstly the FTT and then again at the higher level, the decision will be based on real case law and the real circumstances of the engagement. What the CEST or anything else says about it is utterly irrelevant.

The law surrounding IR35 has not changed at all and the usual remedies still apply. The CEST is merely one way to make an initial assessment, it cannot be definitive. The only good thing is that if you are found inside on a gig advertised as outside you won't be picking up the bill - unless you've signed something really silly in your contract about who is the fee payer.

[meanttobeworking]

Agreed. To be fair I’m talking about private sector IR35 defence, and this is in the public sector area of the forum, so I probably should have been clearer.

[ChimpMaster]

So in the case of an IT Contractor, gathering evidence for at least one, but ideally as many of the following points as possible for each contract, alongside carrying IPSE Plus membership and arguably IR35 insurance *should* place them in a reasonably comfortable position in case of investigation? Not withstanding any HMRC dirty tricks.

1.
- the client would accept a suitable substitute

2.
- the client would send them home in the absence of work
AND
- the client is not under obligation to extend a contract
AND
- the contractor is not under obligation to accept an extension

3.
- the contractor and the client discuss and agree ways of working (rather than the contractor takes instruction from the client)
AND
- the contractor is not obliged to accept changes to the initially agreed deliverables, and any agreed changes are documented appropriately

It's not that simple when using CEST. I played around with CEST the other day for fun, hence my post http://forums.contractoruk.com/accou...test-ir35.html

The CEST tool is weighted towards a HMRC victory on pretty much every question. Even for the 3 areas you list above, if you look at CEST the questions do not give the consultant much chance of getting through unscathed. I won't repeat what I said in my post as there's too much info but to summarise: CEST will screw you unless you can answer very specifically, or you can force the client to take on a substitute without even approving that person.

[eek]

Well, looks like I just solved IR35 then [emoji3]

Nope because 2 is no different from a zero hour contract which would be under PAYE....

[meanttobeworking]

Well, looks like I just solved IR35 then [emoji3]

[meanttobeworking]

So if it really does boil down to that, wouldn’t any client gladly confirm at least number 2 (and why wouldn’t they?), at which point I ask my self why we are all so worried?

Come on Malvolio and NLUK, tell me why this is too simple

[SeanT]

So in the case of an IT Contractor, gathering evidence for at least one, but ideally as many of the following points as possible for each contract, alongside carrying IPSE Plus membership and arguably IR35 insurance *should* place them in a reasonably comfortable position in case of investigation? Not withstanding any HMRC dirty tricks.

1.
- the client would accept a suitable substitute

2.
- the client would send them home in the absence of work
AND
- the client is not under obligation to extend a contract
AND
- the contractor is not under obligation to accept an extension

3.
- the contractor and the client discuss and agree ways of working (rather than the contractor takes instruction from the client)
AND
- the contractor is not obliged to accept changes to the initially agreed deliverables, and any agreed changes are documented appropriately

Amen. Until they move the goalposts again.

[meanttobeworking]

HMRC deliberately omitted MOO from ESS/CEST

Precisely. That has been the case right back to the original RMC case in the 70s.

So in the case of an IT Contractor, gathering evidence for at least one, but ideally as many of the following points as possible for each contract, alongside carrying IPSE Plus membership and arguably IR35 insurance *should* place them in a reasonably comfortable position in case of investigation? Not withstanding any HMRC dirty tricks.

1.
- the client would accept a suitable substitute

2.
- the client would send them home in the absence of work
AND
- the client is not under obligation to extend a contract
AND
- the contractor is not under obligation to accept an extension

3.
- the contractor and the client discuss and agree ways of working (rather than the contractor takes instruction from the client)
AND
- the contractor is not obliged to accept changes to the initially agreed deliverables, and any agreed changes are documented appropriately

[SueEllen]

No. Distinguish between locums that take on longer contracts compared to those who are used to fill in gaps in resources on an as-needed basis. The former may be depending on their contracts and Ts&Cs, the latter probably aren't. The "disguised employee" argument remains unchanged.

Even for the former group, they could also argue that they are employed by an NHS trust for each contract and that trust does not have to renew the contract on completion, which blows HMRC's argument that they are employees of the NHS as a whole.

If it were black and white, we wouldn't be arguing about IR35 after 20 years...

NLUK is arguing about what level the locum is. If the locum is a consultant then clearly would be easier to argue they are out of IR35 but lower levels are considered to be needing supervision.

[malvolio]

Isn't just the mention of locums a problem. There has been plenty of opinion they were inside anyway so a poor indicator of anything that would affect us?

No. Distinguish between locums that take on longer contracts compared to those who are used to fill in gaps in resources on an as-needed basis. The former may be depending on their contracts and Ts&Cs, the latter probably aren't. The "disguised employee" argument remains unchanged.

Even for the former group, they could also argue that they are employed by an NHS trust for each contract and that trust does not have to renew the contract on completion, which blows HMRC's argument that they are employees of the NHS as a whole.

If it were black and white, we wouldn't be arguing about IR35 after 20 years...

[northernladuk]

Isn't just the mention of locums a problem. There has been plenty of opinion they were inside anyway so a poor indicator of anything that would affect us?