New "guidance"

[webberg]

Quote Originally Posted by webberg View Post
Them's bold statements.

To follow your logic, a self employed (sole trader presumably) is outside IR35 because there is no intermediary? They are self-employed because that is the client determination of the employment status. If the self-employed person uses a PSC that is their choice.
That is unfortunately not correct. A genuine sole trader, no intermediary, is NOT subject to client determination. Further, somebody who works for a PSC is not self employed. They are - for tax purposes - an employee or an office holder of the PSC - not self employed.

An employee (defined how?) is outside IR35 because they are an employee and there is no intermediary. They are an employee because that is the client determination of the employment status Again, I think this is not logical because being an employee for employment law purposes and although the end client has chosen to admit them to employment, it requires no IR35 determination.

A worker without an intermediary being present is perhaps one of the above. They are a worker because that is the client determination of the employment status But "worker" is not a recognised tax status and the end client cannot determine that they are something that the law does not define?


A worker with an intermediary present is what? Irrelevant as it's the employment status determined by the client. Lots of Agencies provide temp workers to big organisations who have worker rights. I disagree. I think this is very relevant. This is the heart of IR35. An agency may provide temp workers and they may have rights granted them by the end client, the agency, the law. Their tax status however is determined by IR35 and that means the end client is obliged to make a determination.

I get where you're coming from but the whole purpose of IR35 is to look at "workers" who use an intermediary to provide personal services. It obliges an end client (after April 2020) to decide whether - if that worker was subject to a hypothetical contract - they would be an employee.

It is tempting to do away with "employed, employee, self employed, etc" and use "worker". Indeed the Taylor Good Work Report did exactly that. However the Gov't for reasons of its own has retained now and beyond April 2020 a distinction between employed for employment and tax law and the dividing line is IR35.

[jamesbrown]

To follow your logic, a self employed (sole trader presumably) is outside IR35 because there is no intermediary?

I mean, yes?

There needs to be an intermediary and, depending on the flavour of intermediary, you need to meet the (pre)-conditions of liability in part 2 ch 8 of ITEPA, notably:

(4)For this purpose a material interest means—
(a)beneficial ownership of, or the ability to control, directly or through the medium of other companies or by any other indirect means, more than 5% of the ordinary share capital of the company

There are other types of intermediary, but there needs to be an intermediary. The clue's in the name; unless you are making an obscure point that escapes me...

All that said, deemed employment and employment are two completely different things, legislatively, and they merely share criteria for what an employment relationship looks like.

[webberg]

I'm sure that Mr Bluesharp can answer for him/herself.

[BlueSharp]

Them's bold statements.

To follow your logic, a self employed (sole trader presumably) is outside IR35 because there is no intermediary? They are self-employed because that is the client determination of the employment status. If the self-employed person uses a PSC that is their choice.

An employee (defined how?) is outside IR35 because they are an employee and there is no intermediary. They are an employee because that is the client determination of the employment status

A worker without an intermediary being present is perhaps one of the above. They are a worker because that is the client determination of the employment status


A worker with an intermediary present is what? Irrelevant as it's the employment status determined by the client. Lots of Agencies provide temp workers to big organisations who have worker rights.

Could be genuinely not an employee as defined for tax purposes, could be an employee for tax purposes.

And be clear that by that I mean taxed at the same rate as an employee without attaining that status in employment law.

You define the difference - for tax purposes - by applying the guidance in IR35, past cases, perhaps future cases, what little actual legislation exists, HMRC bias, agency bias, end client risk avoidance, etc, etc.

Not clear to me how you get to "IR35 is dead". By making the client make a decision on the Employment Status of all its relationships and holding them liable for Employment tax if they get it wrong.

Comments above. HMRC won't care about the differentiation between a worker or employee as the tax is collected but an ET will.

[JohntheBike]

Them's bold statements.

To follow your logic, a self employed (sole trader presumably) is outside IR35 because there is no intermediary?

An employee (defined how?) is outside IR35 because they are an employee and there is no intermediary.

A worker without an intermediary being present is perhaps one of the above.

A worker with an intermediary present is what?

Could be genuinely not an employee as defined for tax purposes, could be an employee for tax purposes.

And be clear that by that I mean taxed at the same rate as an employee without attaining that status in employment law.

You define the difference - for tax purposes - by applying the guidance in IR35, past cases, perhaps future cases, what little actual legislation exists, HMRC bias, agency bias, end client risk avoidance, etc, etc.

Not clear to me how you get to "IR35 is dead".

clearly it isn't dead as an outside IR35 determination by a client could still be challenged by HMRC in the FTT. Given their approach in the Alcock case, I suspect that HMRC will initially go for those who are declared outside of IR35 and not those who will be declared inside IR35 and have contended in the past that they were outside.

[webberg]

I mentioned this in another thread, the key change here is employment status is king, not CEST or working practices.

The concept of ir35 is dead. For an engagement, you are either Self Employed, a worker or an employee and will be taxed accordingly to your employment status.

Which case law should a client co refer to when determining employment status, ET or FTT?

Them's bold statements.

To follow your logic, a self employed (sole trader presumably) is outside IR35 because there is no intermediary?

An employee (defined how?) is outside IR35 because they are an employee and there is no intermediary.

A worker without an intermediary being present is perhaps one of the above.

A worker with an intermediary present is what?

Could be genuinely not an employee as defined for tax purposes, could be an employee for tax purposes.

And be clear that by that I mean taxed at the same rate as an employee without attaining that status in employment law.

You define the difference - for tax purposes - by applying the guidance in IR35, past cases, perhaps future cases, what little actual legislation exists, HMRC bias, agency bias, end client risk avoidance, etc, etc.

Not clear to me how you get to "IR35 is dead".

[BlueSharp]

I mentioned this in another thread, the key change here is employment status is king, not CEST or working practices.

The concept of ir35 is dead. For an engagement, you are either Self Employed, a worker or an employee and will be taxed accordingly to your employment status.

Which case law should a client co refer to when determining employment status, ET or FTT?

[ladymuck]

404 page not found

Sounds about right


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Link did work for me but the article contained nothing new.

[GhostofTarbera]

And here's IPSE's response

404 page not found

Sounds about right


Sent from my iPhone using Contractor UK Forum

[PTP]

And here's IPSE's response

[webberg]

April 2020 changes to off-payroll working for clients - GOV.UK

Not very helpful.