I've said this elsewhere in slightly different ways but I'll say it again.
1. In determining whether a position/role is inside or outside IR35, the contract is a relatively light item that comes into the picture only towards the end of a process that identifies and weighs FACTS, working practices, supervision, direction, control and a number of other factors.
Don't forget that the legislation here asks the Judge to assess the facts and to then imagine what sort of contract would encompass those facts and would that theoretical or hypothetical contract look like an employment or not.
We can discuss contracts and their nuances until we are blue in the face but if the description of the role etc in that contract is at odds with the facts, it will mean little in any contest before a Judge.
2. The use of a boiler plate contract (often described as being one that ensures you are outside IR35) is by the nature of what is being tested, quite a dangerous "asset".
I fail to see how a boiler plate contract (i.e. one in which all the operative provisions and descriptions are generic with perhaps a schedule that covers the actual role) can capture all the nuances of a role.
I can see HMRC claim that 20 contractors in one company, all with the same generic contract, slight variances only in schedules, means that there are 20 employees.
That is pretty obviously a sweeping generalisation and like most of its kind is almost certainly incorrect, but you can see the power of the arguments and potential for an easy win for HMRC.
Whilst I'm sure that we will see such boilerplate contracts continue, if you look at the processes of the insurers in this space, they look at the facts and circumstances and do not use boilerplate documents.
If you have been with intermediaries who have taken a one size fits all approach to documenting roles, I'd be looking at those very carefully just at the moment.
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Reply to: Fighting HMRC and IR35
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Previously on "Fighting HMRC and IR35"
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Originally posted by simes View PostOh, here we go.
My dear sir, I am actually looking at this from the point of view of the end client and perhaps the agent. Not from my point of view, even though perhaps I did muddy the waters with my example of delayed projects... For which, many apologies.
So, from this freshly clarified point of view, the client hopefully continues to want;
1. Access to top level contractors, as opposed to whatever is left over from other Outside opportunities there may be, and
2. An assurance that a bottom line will not be attacked by wrathful and random HMRC enquiries, which Could be achieved by
3. A not costly insurance levy, in much the same way as contractors have had the offer and use of.
And I am wondering if this might not be a way through for 'em.
As for my view of risk and brave new worlds, with 19 years of no-benched contracting, it is all relative.
Perhaps they should read this , as mentioned elsewhere recently...
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Originally posted by malvolio View PostYou can't have it both ways. If you cannot break your big project into discrete deliverables, you maybe need to revisit your project plan. If you want to operate outside IR35, working as a business with the associated business risks is part of the solution, not part of the problem.
In our upcoming brave new world, if you want a nice regular risk-free income, don't go contracting.
My dear sir, I am actually looking at this from the point of view of the end client and perhaps the agent. Not from my point of view, even though perhaps I did muddy the waters with my example of delayed projects... For which, many apologies.
So, from this freshly clarified point of view, the client hopefully continues to want;
1. Access to top level contractors, as opposed to whatever is left over from other Outside opportunities there may be, and
2. An assurance that a bottom line will not be attacked by wrathful and random HMRC enquiries, which Could be achieved by
3. A not costly insurance levy, in much the same way as contractors have had the offer and use of.
And I am wondering if this might not be a way through for 'em.
As for my view of risk and brave new worlds, with 19 years of no-benched contracting, it is all relative.
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Originally posted by simes View PostIndeed. Qdos or any other. Qdos only being mentioned as a defacto example.
In the suggested (ideal world) scenario, HMRC don't Have to take notice as the Client will deem outside if covered by insurance. And if the HMRC come a knocking, as in current times (at time of writing) in the Private Sector, it will be incumbent upon the HMRC to prove otherwise. If they don't, happy days. If they do, client covered by insurance.
In an ideal world yes. SOWs and set deliverables. But would you want to anchor yourself to a project delivery that has been trucking along for four years and to only be paid once delivered in the next three months? (I am a project manager, which is why I am exemplifying this scenario)
In our upcoming brave new world, if you want a nice regular risk-free income, don't go contracting.
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Originally posted by malvolio View PostWhy "QDOS" approved contracts vs any other of a dozen or so similar ones? And approved by whom? HMRC won't take any notice of IPSE, FSB and the IoD, much less commercial operations
The real answer is to use a B2B contract for a set deliverable and, most importantly, ensure you client agrees that you are actually there to do just that and nothing else. Otherwise, their safe solution is to put you inside IR35.
In the suggested (ideal world) scenario, HMRC don't Have to take notice as the Client will deem outside if covered by insurance. And if the HMRC come a knocking, as in current times (at time of writing) in the Private Sector, it will be incumbent upon the HMRC to prove otherwise. If they don't, happy days. If they do, client covered by insurance.
In an ideal world yes. SOWs and set deliverables. But would you want to anchor yourself to a project delivery that has been trucking along for four years and to only be paid once delivered in the next three months? (I am a project manager, which is why I am exemplifying this scenario)
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Originally posted by simes View PostAm sure I have seen this elsewhere so I am not inferring ownership of this thought, but it does look like a possible 'Outside IR35' way through all this is if end clients all become aware of and have available to them;
1. Qdos approved contracts that can be stored locally with client and agent and, subsequent to this;
2. The offer of an insurance package that, in case of later HMRC investigations of 'outside' contracts, and upon proof of Qdos approvals, will cover all losses.
Thoughts? Workable? Utterly stupid and too much to hope for?
The real answer is to use a B2B contract for a set deliverable and, most importantly, ensure you client agrees that you are actually there to do just that and nothing else. Otherwise, their safe solution is to put you inside IR35.
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Am sure I have seen this elsewhere so I am not inferring ownership of this thought, but it does look like a possible 'Outside IR35' way through all this is if end clients all become aware of and have available to them;
1. Qdos approved contracts that can be stored locally with client and agent and, subsequent to this;
2. The offer of an insurance package that, in case of later HMRC investigations of 'outside' contracts, and upon proof of Qdos approvals, will cover all losses.
Thoughts? Workable? Utterly stupid and too much to hope for?
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Originally posted by GhostofTarbera View PostPhone up ipse to see if they will fund the case - hint you don’t need to be a member of ipse for them to fund a good case if it benefits the collective
Let us know if the say No and I’ll put in £100 quid
Sent from my iPhone using Contractor UK Forum
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Originally posted by northernladuk View PostLooks like JTB might actually have some to listen to him. Oh the hours they could spend chatting about their experiences at the ET and FTT over a good glass of port.a good glass of port
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Originally posted by BlueSharp View PostDone. Even if it just shows some of us are prepared to to do something other than moan on forums.
Or both, of course...
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Done. Even if it just shows some of us are prepared to to do something other than moan on forums.
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Looks like JTB might actually have some to listen to him. Oh the hours they could spend chatting about their experiences at the ET and FTT over a good glass of port.
Leave a comment:
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