Surely the reality is that your average software development contract is INSIDE IR35?

[malvolio]

The point is not that some people are caught by IR35, but that some people are not caught by IR35. They are the ones that properly understand their working relationship with the client and that have arranged a proper contract that the client agrees with to describe their relationship. At the end of the day, if you can be dropped with zero notice for any reason the client feels appropriate, from no work to non-performance, and cannot demand further work or payment from the client for not working, then you are not an employee and must not be treated like one.

The risk with the PS implementation of the off payroll rules is that clients will be pressured into not agreeing that some people are outside IR35, mainly on the "walks like a duck" principle. That is why the support from blanket assessments is misguided and dangerous.

[Hobosapien]

The risk with the PS implementation of the off payroll rules is that clients will be pressured into not agreeing that some people are outside IR35, mainly on the "walks like a duck" principle. That is why the support from blanket assessments is misguided and dangerous.

Yup. My PS contract was blanket deemed inside IR35 yet now there is very little work for me to do there is no obligation for client to find me work and no obligation for me to accept whatever they would find.

Though given the choice I'd rather accept being inside IR35 for a higher rate and put as much as possible into 'salary sacrificed' pension pre-tax, as I have been doing. No sleepless nights about retrospective rule changes and hector kicking my backdoor in years down the line.

[FK1]

Yes, my take on it is: A contractor is brought in to fulfil a role on a project where the client does not have the required specialist knowledge in house to do so themselves.
If you're brought in to cover maternity leave (for example) or because things are a bit busier and you're joining a team for a few weeks/months to do the same job as permanent staff are currently doing, then you're a temp. If you end up temping for more than a few months, you're effectively a permanent member of staff.

And if you're not sure, ask to see a project plan and ask what the project go live date is. If there isn't one, you're temping.

So just an existence of someone with the same expert level that work with flexible hours and remotely but on a salary would make me a temp? It is not me a disguised employee but that perm(s) are disguised contractors.

[northernladuk]

The clue is in your question.

The reality is that your average software development contract is inside IR35. Possibly.

Definitely this.

An average one maybe is inside. As a contractor you shouldn't be average. We see so many posts on here of people just working like permies on site, little knowledge of IR35 and many other aspects of contracting it would be easy to say yes, they are likely to be inside just through their own actions. Some of them could easily turn a good outside gig into an inside one.

If you know IR35, do your diligence at the beginning before you start, get a good contract signed and then act like a contractor on site it should be pretty easy to be an outside IR35 developer. Obviously it needs a bit of help from the client as well but you can educate them as well while you are there.

[WTFH]

So just an existence of someone with the same expert level that work with flexible hours and remotely but on a salary would make me a temp? It is not me a disguised employee but that perm(s) are disguised contractors.

The permanent employee is not a disguised contractor. They are a permanent employee.

If you've been brought on not for a specific project but to work along side other people who are permanent employees, where they have a similar skill level to you and are doing a similar role as you, then you are not providing the client with something they do not have themselves, you are a temp, filling in for overcapacity in general day-to-day work.

Now, there are exceptions, e.g. where you might have been brought in not for a specific contract, but to provide support and train up others so that they can take over in that role, but that would still fit under my idea of there being a project with an end date. In that case, the project end date will be when you hand over your work to others who take it on.


Others may disagree, but that's my take on it. It would also be a far easier one for HMRC to police - just ask the client for the project plan and the end date.

[jamesbrown]

Others may disagree, but that's my take on it.

Still, it's important to separate between opinion about what it should be and the reality of what case law says.

[softwaredever]

Still, it's important to separate between opinion about what it should be and the reality of what case law says.

So it seems that people are saying that according to the spirit of the law, your average (according to my definition) IT contractor is inside IR35, but according the case law (which is the actual law), they are outside?

[jamesbrown]

So it seems that people are saying that according to the spirit of the law, your average (according to my definition) IT contractor is inside IR35, but according the case law (which is the actual law), they are outside?

The perception of what constitutes being inside IR35 is, indeed, different to the reality in many cases. If you can convincingly show that one of the three pillars applies (a not unreasonably fettered RoS, lack of MoO, lack of D&C), then there's a decent chance you're outside. However, I suspect that many BoS contractors that are, perhaps, legitimately outside at present will be unlikely to be deemed outside in future (and won't consider it worthwhile to fight it). In other words, perception is about to become more important than it has been (and reality).

[FK1]

The permanent employee is not a disguised contractor. They are a permanent employee.

If you've been brought on not for a specific project but to work along side other people who are permanent employees, where they have a similar skill level to you and are doing a similar role as you, then you are not providing the client with something they do not have themselves, you are a temp, filling in for overcapacity in general day-to-day work.
...
It would also be a far easier one for HMRC to police - just ask the client for the project plan and the end date.

I understand there is no legislation about "a disguised contractor" and everything is around to compare with a permanent employee. However it is nothing about the law, nothing about fairness to compare that way. It it populism.

Again a client could have Agile and a team of not less skilled perms that work remotely.
Maybe not all of them but at least 1 or 2 are always exist that earned that freedom.
"RoS, lack of MoO, lack of D&C" criteria put me outside IR35 but I look like those perms.
And what? It is not me trespassing but them.

If a contractor would have been as principal developer of a core functional it is naturally expected it will be supported by an author as long as possible. The software house does it. In opposite a temp does not.

So I doubt skills and end date are a proper filters. Just as clues maybe.

[malvolio]

Ermmm... no.

The acid test that the three criteria are defining is that you are working as an independent business and supplying a service. Your analysis completely misses that point.