IR35 review fail and updates to contract based on review

[OnceStonedRose]

Have been offered a gig and got contract reviewed by qdos. It failed with couple of bits and bobs the last one being "Add more control". The text read:
"The Client shall have no right to, nor shall seek to, exercise any direction, control, or supervision over the Representative in the provision of the services. The Representative shall endeavour to co-operate with the Client’s reasonable requests within the scope of the services, however it is acknowledged that the Representative shall have autonomy over their working methods." which to be fair I knew when I C&P'd over to agency that they would kick this back and I understand to be honest as at the end of the it's a contract, not them asking me to go and write a system for their end client. I know the hardcore on here will bang the desk and go on about how they are truer contractors and that any gig who refused to add this would mean you are an employee yodayodayoda but my question is, would you knock back a decent paying gig based on the agency refusing to add this to a contract?

Realist advice appreciated, not the usual shooting every question down as "you're an employee" because I am not sat in my own offices in silicon valley with 10000 staff members working for me etc....

[TheFaQQer]

The current position on IR35 (which is why you would put something like this in the contract) hasn't changed, and HMRC have confirmed that it will not change before 2017 at the earliest.

On that basis, I would ensure that there is a clear unfettered right of substitution and an explicit lack of MOO in the contract, and a more relaxed S, D AND C working practice than the clause that you have tried to include.

So on that basis, I would accept the contract without the attempt to get no S, D or C involved.

[PerfectStorm]

Real world contractors would probably just get on with it, but buy IPSE+ cover for a bit of security.

Will be interesting to see how you get on though.

[OnceStonedRose]

The current position on IR35 (which is why you would put something like this in the contract) hasn't changed, and HMRC have confirmed that it will not change before 2017 at the earliest.

On that basis, I would ensure that there is a clear unfettered right of substitution and an explicit lack of MOO in the contract, and a more relaxed S, D AND C working practice than the clause that you have tried to include.

So on that basis, I would accept the contract without the attempt to get no S, D or C involved.

Thanks, appreciate the answer. Can you give a heads up on what the "MOO & S,D,C" stand for? Also, do you have any advice/examples you've used maybe of "more relaxed" text I could throw back and ask them to add?

Thanks again, really appreciate answer.

[cojak]

Thanks, appreciate the answer. Can you give a heads up on what the "MOO & S,D,C" stand for? Also, do you have any advice/examples you've used maybe of "more relaxed" text I could throw back and ask them to add?

Thanks again, really appreciate answer.

Mutuality of Obligation.

Substitution, Direction and Control.

Look here for more details: http://www.contractoruk.com/contract..._contract.html

[Pondlife]

Q1) Do the panel think that an insurance product a contractor has bought to mitigate IR35 (ipse, qdos or via accountancy fees etc) would still be valid if the contractor knew it had failed a review?
Q2) Given the contract failed a review, do the panel think that HMRC would impose fines on top of the tax owed if it were deemed to be IR35 caught in an investigation.

Note: This is not a pop at the OP, it's a genuine question and might influence the advice given. Also, I am in no way suggesting that just cos the client/agency refused to add this clause that the OP is IR35 caught.

[pr1]

Have been offered a gig and got contract reviewed by qdos. It failed with couple of bits and bobs the last one being "Add more control". The text read:
"The Client shall have no right to, nor shall seek to, exercise any direction, control, or supervision over the Representative in the provision of the services. The Representative shall endeavour to co-operate with the Client’s reasonable requests within the scope of the services, however it is acknowledged that the Representative shall have autonomy over their working methods." which to be fair I knew when I C&P'd over to agency that they would kick this back and I understand to be honest as at the end of the it's a contract, not them asking me to go and write a system for their end client. I know the hardcore on here will bang the desk and go on about how they are truer contractors and that any gig who refused to add this would mean you are an employee yodayodayoda but my question is, would you knock back a decent paying gig based on the agency refusing to add this to a contract?

Realist advice appreciated, not the usual shooting every question down as "you're an employee" because I am not sat in my own offices in silicon valley with 10000 staff members working for me etc....

Chance of IR35 investigation = less than 1/1000
Number of investigation losses by people with QDOS TLC cover = 0 (out of 2000+)
2+2=

I'll leave the last one to you

[OnceStonedRose]

Chance of IR35 investigation = less than 1/1000
Number of investigation losses by people with QDOS TLC cover = 0 (out of 2000+)
2+2=

I'll leave the last one to you

Cool math skills and all that but what if the agency doesn't agree to the amendment as per the question pal?

[pr1]

Cool math skills and all that but what if the agency doesn't agree to the amendment as per the question pal?

Can you confirm that, to the best of your knowledge, the below statements are true:

You have not been subject to a VAT, PAYE or NIC inspection and/or an HMRC enquiry into your self-assessment tax return (personal and/or corporate) in the last three years.
You are able to exercise a Right of Substitution
You have autonomy over your method of work and are not subject to the same level of supervision or control as your clients’ employees.
Your company currently carries, or you will look to purchase business insurances, such as Professional Indemnity, Employers/Public Liability.
You are not aware of any discrepancies between your company’s contract with your agency and your agency’s contract with your end client.
You have not been employed directly by any of your clients in the 12 months prior to commencing work under a contract for services.

if so, the answer is 4

[OnceStonedRose]

Can you confirm that, to the best of your knowledge, the below statements are true:

You have not been subject to a VAT, PAYE or NIC inspection and/or an HMRC enquiry into your self-assessment tax return (personal and/or corporate) in the last three years.
You are able to exercise a Right of Substitution
You have autonomy over your method of work and are not subject to the same level of supervision or control as your clients’ employees.
Your company currently carries, or you will look to purchase business insurances, such as Professional Indemnity, Employers/Public Liability.
You are not aware of any discrepancies between your company’s contract with your agency and your agency’s contract with your end client.
You have not been employed directly by any of your clients in the 12 months prior to commencing work under a contract for services.

if so, the answer is 4

Cheers for the sums, and also English. Appreciate this.