ECHR and IR35

[WordIsBond]

Are you overlooking that PAYE is just a payment on account?

Yes, so that was what I was missing. Thank you for being kind enough not to say I was daft.

[Iliketax]

I want to know if it is just me, and I'm being daft and overlooking something.

Are you overlooking that PAYE is just a payment on account? You can include what you think is the right income for the year and ask for a repayment of any tax already withheld. If you and HMRC can't agree on what is right then you can appeal to the first-tier tribunal (and beyond).

[eazy]

Pcg ir35 jr

PCG (now IPSE) IR35 JR High Court & Court of Appeal - Three appeal court judges ruled that IR35 was not contrary to European law!

If I remember correctly PCG argued the human right angle, courts threw it out!

[SouWester]

I have too many responsibilities to front anything or drive it forward. But if my argument here makes sense I'd certainly be willing to contribute towards a legal challenge based on the above.

An interesting post, but I think the above puts paid to it as a way forward, unless an altruistic soul with great bags cash and a few spare years steps forward.

I'm with you as I think are most: got responsibilities.

[WordIsBond]

Ok, so the Brexit argument has been sufficiently dispensed with, does anyone have any thoughts on the substance of the original post?

[Amanensia]

ECHR has absolutely nothing to do with the EU.

[TestMangler]

It's still the law until it's repelled though

The facepalm was at the first reply, rather than the OP.

[eek]

It's still the law until it's repelled though

However it won't fit with IPSE's let's pretend to do things while not upsetting HMRC or the Government's world view..

[TestMangler]

[Andy2]

I hate to break it to you but we are out of EU

[WordIsBond]

I want to know if it is just me, and I'm being daft and overlooking something. If I'm correct, this whole 'reform' is in violation of the ECHR and we should have a judicial review.

Source, European Convention on Human Rights.

Article 6, Right to a Fair Trial

1. "In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law."

I'd like to suggest the following main points:

A. It seems to me clearly evident that an IR35 determination is a "determination" of a contractor's "civil rights and obligations." It is determining how much tax he must pay (and how, and when), which is certainly a civil obligation.

B. It seems to me that the IR35 reform does not guarantee a public hearing in this determination. We are hearing from some contractors that questionnaires they are supposed to answer already have some questions answered, and in some cases they cannot see the answer. There is nothing in the legislation that requires the client to inform the contractor of all the factors used to determine his tax liabilities.

C. It seems to me that the IR35 reform does not guarantee a fair hearing. As noted above, the contractor may not even be informed of all the evidence used to make the determination, which means he has no opportunity to respond to it or correct errors. Furthermore, there is no requirement for a fair appeals process.

D. Most egregious, the determination is not made by "an independent and impartial tribunal." Clients are making decisions that impose tax liabilities on contractors, at least in part basing those decisions on their own risk tolerance and their own business interests, rather than strictly on fact and law.

I'm not one to say, "I don't like it, it must be illegal." The law has always been an ass and not everything stupid is illegal. But this one appears to be in direct violation of the specific provision I've cited. I'm not a lawyer, so feel free to say I'm out of my mind.

The new rules do not (yet) directly affect me and my company because I can stick with just foreign clients for some time. I have too many responsibilities to front anything or drive it forward. But if my argument here makes sense I'd certainly be willing to contribute towards a legal challenge based on the above.