Agency Legislation and SD or C

[TheMrs]

I've been reading up on the Agency Legislation and have made sure that my contracts always opt out of it. It strikes me that if the Govt reiew of IR35 follows suit then it would be a simple case of adding an opt out clause?

We are highly skilled oil and gas contractors running a 50 50 split Ltd (husband and wife and never get any guidance from client other than the scope of project, desired outcomes etc. Certainly nobody ever tells me how to actually 'do' my job or where or when (regularly work from home to fit around child care).

I just can't see where all the doom and gloom comes in. There is no way the Govt can automatically include every personal service Co in IR35 just by saying 'make it so'. There are myriad tests and therfore would need to be myriad ways of passing them. I wonder if a lot of the scare mongering is coming from IR35 insurers etc?

[northernladuk]

Simple case of adding an Opt out to IR35?? Really?

And yes the Gov can... and are attempting to do so to a large majority of us. I think you making light of a situation that could potentially be very bad. Instead of reading up on the opt in/out rules should you be reading the IR35 consultations instead? Makes for some fairly grim reading and I don't see any of the IR35 insurers making waves good or bad TBH.

[LisaContractorUmbrella]

You won't be able to opt-out any more than you can opt-out of IR35 as it stands now and there won't be a myriad of tests - there will be one - can you prove that no-one at client co has no right to supervise or direct or control you

[jamesbrown]

I've been reading up on the Agency Legislation and have made sure that my contracts always opt out of it. It strikes me that if the Govt reiew of IR35 follows suit then it would be a simple case of adding an opt out clause?

We are highly skilled oil and gas contractors running a 50 50 split Ltd (husband and wife and never get any guidance from client other than the scope of project, desired outcomes etc. Certainly nobody ever tells me how to actually 'do' my job or where or when (regularly work from home to fit around child care).

I just can't see where all the doom and gloom comes in. There is no way the Govt can automatically include every personal service Co in IR35 just by saying 'make it so'. There are myriad tests and therfore would need to be myriad ways of passing them. I wonder if a lot of the scare mongering is coming from IR35 insurers etc?

You're confused about the scope of the agency legislation versus the scope of IR35. The agency legislation doesn't apply to payments on which PAYE is operated or on dividends, which are not income from employment, and there are several other exclusions (such as work in the entertainment industry and work which is performed wholly at a location that is not under the control of the client). The IR35 legislation is far-reaching and is specifically designed to prevent any tax advantage through dividend payments when the relationship looks like one of employment. There is no "opting out" of IR35, and I'm quite stunned that you would even entertain this as being possible.

This isn't the same situation as 1999 when a lot of the exaggerations were more easily dismissed (often linked to those with vested interests), although I do think some of that applies to the arguments about SDC specifically. The difference here is that the main proposal is to have engagers determine status, and that is much less likely to end well (for anyone in the contracting industry).

[Danglekt]

You won't be able to opt-out any more than you can opt-out of IR35 as it stands now and there won't be a myriad of tests - there will be one - can you prove that no-one at client co has no right to supervise or direct or control you

Too many no's in that description I think it should read:


"can you prove that no-one at client co has the right to supervise or direct or control you"

[DonkeyRhubarb]

Is the OP confusing different agency regs?

There are the agency regs that you can opt out of (EU stuff?) but these are totally separate to the Agency Legislation which applies to false self-employment.

[TheMrs]

I'm not making light of anything. I just can't see how clients can be forced to agree that they exercise S D or C if they don't and never have.

My clients have always, without exception, retained MyCo on the basis of a contract which expressly states they will not SD or C how I work, I have full sub rights no moo, no notice period etc etc. All of which fully backed up by my working practices. We are an independent contracting business which happens to supply people instead of widgets. Surely you can't just suddenly become a disguised employee because the Revenue would like more money....

I agree clients want a quiet life but they also want a flexible highly skilled contracting pool to call on when required. Not yet another expensive employee they are stuck with through good times and bad.

[fidot]

I'm not making light of anything. I just can't see how clients can be forced to agree that they exercise S D or C if they don't and never have..

You've missed the bit where the end client is liable for penalties if they get the determination wrong. Do you really believe your clients are prepared to risk that?

[LisaContractorUmbrella]

Too many no's in that description I think it should read:


"can you prove that no-one at client co has the right to supervise or direct or control you"

You're right it should

[gables]

You've missed the bit where the end client is liable for penalties if they get the determination wrong. Do you really believe your clients are prepared to risk that?

But who actual determines the final result? If HMRC ask ClientCo is a contractor under SDC, and they say no, isn't that it determined? I mean, HMRC can't then say, well we determine it differently. And if they can what is that based on?