Reply to: Potential merits of a change of agency to the risk of IR35 investigation...

[aligning2020]

Good points well made WordIsBond. Thanks for input.

[northernladuk]

There's no way to define a different role. If it smells like a different role, it is.

If some of the other things are different, and you are traveling to a different location, that would help reinforce the idea that it is a different role. If nothing else is different, traveling to a different location is irrelevant.

So, is different location a factor? Yes, sometimes, other times, no. .

But but but... How will the tickbox permitractors manage now?

[WordIsBond]

There's no way to define a different role. If it smells like a different role, it is.

If some of the other things are different, and you are traveling to a different location, that would help reinforce the idea that it is a different role. If nothing else is different, traveling to a different location is irrelevant.

So, is different location a factor? Yes, sometimes, other times, no.

To go to the original question, being through a different agent with a different contract would certainly help you to argue that this is a different role. If you are doing it for a different part of the ClientCo, and working on a different project, that helps even more. But if all you've really done is moved to another office, you might have a tougher argument.

If I understand correctly this is all about whether or not doing a different role helps to mitigate the risk of historical investigations. To be clear we don't even know really how much risk there is of that, nor how any of this would be interpreted by HMRC. You might be trying to parse out something that they'll never do.

The most likely thing is, if they do find out you are with the same client, they'll send you a nice letter saying, "We understand you are on payroll and probably should have been before. Please pay up." And your representative will respond, "Our client was outside IR35 in a completely different role, with a different department, to the one he's now doing on payroll. No tax is due because his contract and working practices were clearly outside IR35." And HMRC likely shrugs and moves on to softer targets.

No one knows the risk but if you ever are flagged up, that in my view is the most likely outcome. Moving to a different agency both reduces the risk of being flagged up and (probably) makes it easier to convince HMRC it is a different role.

One other thing. If your existing contract includes handcuffs, and you are being allowed to escape the handcuffs, that would also be a helpful argument that it is a different role. "I could never have done this if it were the same role, there are handcuff clauses in my contract." Again, that's no silver bullet, there are no silver bullets. It's one more argument in your favour.

[northernladuk]

Jesus wept. This thread is draining.

How difficult is it to say whether something is different? If it's not the same, it's different. What's hard about that?

IMO the OPs whole discussion about role is the problem. We don't deliver roles. Permies do. We deliver work and it's even more bloody obvious when you talk about work done.

Maybe dropping the permie thinking will help be a contractor. I mean.. Report in to a manager????

[aligning2020]

Great. Glad discussion is of some broader value. So we have a baseline list to work off. Would you welcome thoughts on other people’s views on the merits of each item and any other missing points....

[SouWester]

Indicative of a role change?

1. Role title changed significantly.
2. Contractual role description has changed significantly compared to PSC contract
3. Role reports into a manager (or god forbid different manager if you were for some reason doing such via PSC route!)
4. Role is in different area of the business
5. Previous role instance that contractor undertook has moved to be undertaken in another country. So that role instance is no longer available to you and the associated PSC contract ran out/was terminated.
6. Day to day working practices of the "new role" significantly differ from the previous.

1 and 5 would be irrelevant IMHO. The other points would build a picture that may or may not convince a fellow human. I don't think anything major is missing but others may chip in.

I have more than a passing interest in this, as this is what I am (hopefully) doing - transitioning to permie on a different project, different manager, different BU, different working conditions and (of course) contractural conditions. Same client. Am on SOW contract at moment which also helps me be comfortable that I can quickly demonstrate today's deliverables look nothing like tomorrow's.

You pays yer money and yuh takes yer chances.

[Paralytic]

Thanks SouWester. And the attributes of a "role" which will and won't be considered in an investigation triggered by move from PSC to PAYE/Umbrella at same end client , and the changes in those attributes which would make for a "role change", isn't something that I've seen discussed on here in any great detail, and even better a "role change" thread put in one place on the forum for all to refer to (sticky?). Off the top of my head, attributes for consideration and discussion in terms of their merits:

Indicative of a role change?

1. Role title changed significantly.
2. Contractual role description has changed significantly compared to PSC contract
3. Role reports into a manager (or god forbid different manager if you were for some reason doing such via PSC route!)
4. Role is in different area of the business
5. Previous role instance that contractor undertook has moved to be undertaken in another country. So that role instance is no longer available to you and the associated PSC contract ran out/was terminated.
6. Day to day working practices of the "new role" significantly differ from the previous.

Thoughts? Other attributes to be considered?

Thanks

I would say 1, 3, 4, 5 are irrelevant in saying whether is a new role, 2 is a minor contributor, 6 is the main thing. This is how I'd measure my risk if it were me.

[aligning2020]

Thanks SouWester. And the attributes of a "role" which will and won't be considered in an investigation triggered by move from PSC to PAYE/Umbrella at same end client , and the changes in those attributes which would make for a "role change", isn't something that I've seen discussed on here in any great detail, and even better a "role change" thread put in one place on the forum for all to refer to (sticky?). Off the top of my head, attributes for consideration and discussion in terms of their merits:

Indicative of a role change?

1. Role title changed significantly.
2. Contractual role description has changed significantly compared to PSC contract
3. Role reports into a manager (or god forbid different manager if you were for some reason doing such via PSC route!)
4. Role is in different area of the business
5. Previous role instance that contractor undertook has moved to be undertaken in another country. So that role instance is no longer available to you and the associated PSC contract ran out/was terminated.
6. Day to day working practices of the "new role" significantly differ from the previous.

Thoughts? Other attributes to be considered?

Thanks

[SouWester]

1. What actually does and doesn't constitute to a "role change"?

The more 'real' it is the lower your risk. Same project/manager/deliverables but a different job title: not very real. Imagine trying to convince a skeptic - would you be able to do this with your 'new role'?

2. Where there is a role change what are views on the impact to risk to retrospective IR35 investigation and IR35 investigation result?

Role probably has little to do with risk of an investigation. My opinion only, but there will be lots of targets post-April so HMRC will need a cost-effective method of enforcement (if they go down this path of course) - if they can ID you via data then you are more likely to get a nudge letter. If you are genuinely investigated by a human then the 'real-ness' of your role comes into play.

It's all speculation, nobody really knows.

[northernladuk]

You didn't try the Google search terms I gave you did you.

[aligning2020]

Nothing for “you” to be sorry about. I aren’t in any ways or means looking for “you” to resolve any concerns or queries I may or may not have. If all of the unknowns were crystal clear knowns to everyone then I suspect the forum would be a very quiet place.

What I am doing is opening and inviting constructive respectful discussion and indeed debate to other posters, on unknowns and scenarios not covered elsewhere, which I’m sure other people will find useful. If you’ve nothing to add along those lines, then why would you bother spending precious time replying? Unless that’s what floats your boat.

[northernladuk]

So there is a very clear and consistent view from everyone on here with regards to what attributes of roles would be compared by HMRC, if they looked at comparing two of them during an investigation?

No because it hasn't happened yet has it :
Gotta use a bit off common here I am afraid. I know it's tough. Sorry.

Endlessly. Really? Literally doesn't appear to have been discussed anywhere at all on here to me.

The levels of risks, why, possible outcomes and so on have and it should be enough to give you a chance to have at least an educated guess at the outcome. You should know what will attract HMRC and the risks faced. We cannot answer every single scenario over and over because at the end we just don't know.

But tip for you. Use the Google search and use a term like 'different role'

[aligning2020]

Where the new one doesn't look like it's the same as the old one.

So there is a very clear and consistent view from everyone on here with regards to what attributes of roles would be compared by HMRC, if they looked at comparing two of them during an investigation?

It would very much depend on the answer to 1 and the situation around the change. And even if we had the details we don't know. This one is discussed endlessly as it's a pretty basic question.

Endlessly. Really? Literally doesn't appear to have been discussed anywhere at all on here to me.

[northernladuk]

1. What actually does and doesn't constitute to a "role change"?

Where the new one doesn't look like it's the same as the old one.

2. Where there is a role change what are views on the impact to risk to retrospective IR35 investigation and IR35 investigation result?

It would very much depend on the answer to 1 and the situation around the change. And even if we had the details we don't know. This one is discussed endlessly as it's a pretty basic question.

So there is nothing new or unique to your questions and much of the detail is discussed in most 'what about my situation/idea' threads.

[aligning2020]

Thanks for the kudos. I'd have to disagree on the level of consideration given though. I've considered it very carefully and don't have clarity. Plus searched the forums to see if this has been discussed before using your suggested method; genuine thanks for that. It hasn't been from what I can see. Happy to be proven otherwise. So to be concise, I'm interested in view on:

1. What actually does and doesn't constitute to a "role change"?
2. Where there is a role change what are views on the impact to risk to retrospective IR35 investigation and IR35 investigation result?

Suspect there could be multiple people potentially going down that route, so worthy of discussion for the greater good.