Reply to: Finance Bill 2019-20 draft legislation

[WordIsBond]

So can you provide details of this case law?

If you'll actually read what I said, it is pretty obvious. Every IR35 case that HMRC has actually won (they do win a few, you know) is a precedent in case law for non-employees being treated as employees for tax.

That is not an explicit endorsement of this disconnect, and I didn't claim it is. But it is an implicit precedent.

[LeeSJ]

Permie jobs

Permie roles are not always on offer, you know. If the clients wanted permies they could hire permies.

Do you know how hard it is to get additional headcount approved in large organisations who are struggling to keep their opex costs down? There's no way the majority of companies will be able to offer truly perm roles for all contractors... certainly not in the short term

[JohntheBike]

Time to get on to our MPs to get it in to law?

depending on what transpires, and there is a multitude of options, I might test it myself. The client will have to make the first move. I'm not averse to using the ET/EAT route as you might know!

[JohntheBike]

Perhaps not entirely accurately. The legislation says (emphasis added):

By saying 'for income tax purposes' it implicitly suggests there are other purposes.

And there is case law precedent of people who were not employees being regarded as employees for tax purposes.

I'm not aware of any explicit basis in law for the distinction but it is implicit. So while I've argued similarly to you on this question and I see it as the weakest point in HMRC's position, I think it is a step too far to say no basis in law.

So can you provide details of this case law? My contention is that the same engagement hasn't been judged in both the FTT and the ET, let alone a different judgement given. This is slightly different from what you are saying. I can understand that someone who considered themselves to be self employed was judged an employee for tax purposes, but I guess no one classed as such then took their case to the ET, let alone received a different judgement, i.e. self employed.

[jds 1981]

there isn't any basis in law, as I keep saying.

Time to get on to our MPs to get it in to law?

[northernladuk]

yes, my mother called me John Blunt

You sure you heard that right?

[WordIsBond]

there isn't any basis in law, as I keep saying.

Perhaps not entirely accurately. The legislation says (emphasis added):

the circumstances are such that, if the services were provided under a contract directly between the client and the worker, the worker would be regarded for income tax purposes as an employee of the client.

By saying 'for income tax purposes' it implicitly suggests there are other purposes.

And there is case law precedent of people who were not employees being regarded as employees for tax purposes.

I'm not aware of any explicit basis in law for the distinction but it is implicit. So while I've argued similarly to you on this question and I see it as the weakest point in HMRC's position, I think it is a step too far to say no basis in law.

[JohntheBike]

No. You might have said something similar sometime but if so I'm sure yours lacks the same charm, pizzazz, sheer weight of intellect, balance, perspective, tact, wisdom, kindness, and humour.

yes, my mother called me John Blunt

[WordIsBond]

did I post this?

No. You might have said something similar sometime but if so I'm sure yours lacks the same charm, pizzazz, sheer weight of intellect, balance, perspective, tact, wisdom, kindness, and humour.

[BrilloPad]

Contracting for 25 years next month.

Okay Harry

[helen7]

My skills are not unique, but they are valuable, as they are mostly unavailable in the permie resource pool.

I don't know how long have you been contracting for, but doesn't seems to be long

Contracting for 25 years next month.

[JohntheBike]

I get the whole tax and employment status laws should be aligned argument on a moral and to some extent logical level but no one has ever pointed out it's basis in law.

At the moment similar happens to self employed delivery drivers, etc. who work shifts when they are told and nothing seems to be happening over that at the moment.

there isn't any basis in law, as I keep saying.

[JohntheBike]

Sounds fine. All ETs are like Judge Judy, right?

ah, no.

[JohntheBike]

I was repeating a point that I've been making for a long time now, that the "old think" of having a contract that says many things about the role and how it's performed which if measured on its own is "outside", m
eans that you are actually "outside", never was correct or safe and will become even less so in the new world.

The "new think" has to be to look at the role and its performance first and draw a contract up that reflects it - and to subject that written contract and the actual role to gap analysis at regular intervals. This now has to be done between end client (more likely some form of intermediary) and the contractor.

I accept that the likes of QDOS have a role to play in determining the final position both factually and contractually, but they cannot produce a set of words or clauses which switches an inside contractor role to an outside version.

I read the context of the point I was responding to as suggesting that clever wording could achieve this. I may have put too much weight on that, in which case, my apologies.

I wouldn't say it's "new think". Both the FTT and the ET have been obliged to look at the whole picture, i.e. the contract and the actual working practises. Then they are required to make a judgement "on balance" of the evidence.

[JohntheBike]

If the contractor was outside for even part of this year before starting this contract, or expects/hopes to be outside within a year or so, then having a 6-12 month contract would not be reason to close his company, necessarily.

The real problem with inside IR35 Ltd Co work under this reform is you can't protect against the NI contributions with large pension contributions. You can only do that if you go with an umbrella -- but then you have to pay umbrella fees, too.


Precisely. A week after leaving. Especially if they let him go without notice.


It doesn't take that many of those before the clients who insist that everyone is inside suddenly realise they aren't getting the best people. I agree. There might be a glut of inside determinations initially, but usually market forces attain some kind of equilibrium even when government has tinkered/interfered. That will happen here, too.

did I post this?