IR35/same company over 3 years

[sibbers]

Hi.

I have searched but not sure that any of the posts answer my question.
I started a contract, via an agency, in April 2012. Initially it was 3 months. It has been extended again and again (5 times in total, different lengths each time) and the client has asked me to stay on for another 6 months.
This will take me past two years with the same agency/client.
What are the IR35 implications of this?

I have seen comments about expenses.

So to explain a little more.

I am based in an office near Reading. I pick up projects as a PM at various locations for their clients throughout the UK so I travel to those sites on and off and stay in hotels as necessary, however I work anywhere from 1-5 days from home as the work allows.

I claim mileage and food/drinks whenever I visit the "base" location, and also claim mileage, subsistence and accommodation for the further afield sites.

I am aware of the 10,000 miles and how the cost per mile changes so I always reflect that in my expenses.
So, if I took the extension, how would my worlld change please?

Thanks in advance.

[MyUserName]

The length of time at a client is not necessarily a problem, it depends on what you are doing.

Are you only ever doing what is in your contract?
Do they find work for you of some kind if you are out of things to do?
Have you ever sent in a sub rather than yourself?
Are there permies there doing the same sort of thing you are?

[northernladuk]

The length of time at a client is not necessarily a problem, it depends on what you are doing.

Are you only ever doing what is in your contract?
Do they find work for you of some kind if you are out of things to do?
Have you ever sent in a sub rather than yourself?
Are there permies there doing the same sort of thing you are?

Yep.. Lots of things to consider. Firtly the 24 months. As soon as you KNOW you will be there past 24 months your base location becomes a permanent one so no more mileage or food at that location. Nothing to do with IR35.

Did you have your contract reviewed for IR35? You could be inside already if not.

Length doesn't matter generally but on longer contracts be very careful you are not part and parcel of the organisation. You also have to make sure you are not filling an enduring role. A safe situation is working on a couple of gigs totally unrelated to each other, different contracts in different areas of the organisation. A difficult one is being part of the Project Management group and being given different projects. Yes the projects are different but you are starting to be seen as part of the PM resource pool to be allocated to. The client will include you and the premies in the same pot when deciding how to distribute projects. I would say in this situation you are in trouble.
It isn't about what you do either. It's about how the client sees you. If HMRC speak to the client and he confirms he just allocates you the next project then your screwed. You're just an enduring PM not a contractor fulfilling a specialist role.

If you have been there a long time what you should be doing is getting your rate increased. The agent has had his pound of flesh and is now getting money for doing absolutely squat. It would seem reasonable for him to give up a bit of his cut to keep you sweet and on site. Have you found out what his percentage is yet?

In a nutshell I do think the alarm bells should be ringing with regards to IR35 so really need to look at the situation carefully to make sure you are still outside. We don't know about your contract, MoO, RoS etc so just guessing but from what you have said I would be reviewing the situation carefully. Your drop in expenses due to 24 months should easily be replaced by uplift in your rate.

[DirtyDog]

What are the IR35 implications of this?

None. Length of time is no factor in determining IR35 status.

So, if I took the extension, how would my worlld change please?

Assuming that you aren't spending a significant proportion of your time in one location over the past two years, it wouldn't.

[northernladuk]

None. Length of time is no factor in determining IR35 status.

Can't agree as I have already pointed out. On paper it doesn't but in reality a whole host of issues need to be managed carefully to avoid your status changing.

[DirtyDog]

Can't agree as I have already pointed out. On paper it doesn't but in reality a whole host of issues need to be managed carefully to avoid your status changing.

HMRC have tried before to claim that length of contract has is an indicator of IR35, and lost.

I agree that if you are acting like an employee and viewed like an employee, then chances of failing an investigation are higher, but to imply that just because you have been in a long contract you would be inside IR35 is ridiculous.

[GB9]

HMRC have tried before to claim that length of contract has is an indicator of IR35, and lost.

I agree that if you are acting like an employee and viewed like an employee, then chances of failing an investigation are higher, but to imply that just because you have been in a long contract you would be inside IR35 is ridiculous.

Broadly agree, however, as NLUK said, the longer you are there the more danger there is of being seen to be part and parcel of the organisation. Just something to watch out for.

[MyUserName]

HMRC have tried before to claim that length of contract has is an indicator of IR35, and lost.

I agree that if you are acting like an employee and viewed like an employee, then chances of failing an investigation are higher, but to imply that just because you have been in a long contract you would be inside IR35 is ridiculous.

Yeah, I think that the length by itself is not an issue but it can be an indicator of the role itself being a disguised permie one.

[northernladuk]

HMRC have tried before to claim that length of contract has is an indicator of IR35, and lost.

I agree that if you are acting like an employee and viewed like an employee, then chances of failing an investigation are higher, but to imply that just because you have been in a long contract you would be inside IR35 is ridiculous.

Absolutely agree but the OP is asking for advice on his situation. Sounds to me like his situation is warrants a modicum of care. I don't think anyone has implied what you say at all. The answer is 'No but.....'

Don't forget the JLJ case was based on the fact he had been there a long time and they stopped bothering with statements of work and focussing on details of the contract. He slipped quietly from being a contractor outside IR35 to a disguised permie inside IR35. Something that wouldn't have happened had he carried out a number of shorter contracts with different clients.

[DirtyDog]

Absolutely agree but the OP is asking for advice on his situation. Sounds to me like his situation is warrants a modicum of care. I don't think anyone has implied what you say at all. The answer is 'No but.....'

No. The original statement was "This will take me past two years with the same agency/client.
What are the IR35 implications of this?"

The answer, based on IR35 case precedent, is that the length of contract is irrelevant.