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  1. #21

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    Quote Originally Posted by webberg View Post
    A lot of the above is "old think" and far too historical and personal to have much relevance in the real world.

    In that real world, HMRC will have its hands full with cases where the IR35 position pre April 2020 is extremely debatable and which will almost certainly yield them tax money (interest + penalty).

    Further HMRC will not give two hoots about "negative publicity". They are firmly in the camp of all publicity being good. They are playing a long game with IR35 cases and whilst I know it's an unpopular view, I think the present losing streak for them in status cases is establishing a base line of cases where the boundaries will become clear.

    Further, HMRC will care nothing for possible damage or consequences for an Employment Tribunal. Do not make the mistake of thinking that Government is joined up - it's very much not. HMRC has an agenda - "maximise tax" - and that is the be all and end all. They do not care if the DWP then has to make a claim for a bigger slice of the pie in order to pay people holiday pay or whatever. That has not, is not and will not be part of the equation they assemble.
    I don't see how you can be so sure about the negative aspects to HMRC in relation to the ET. If what you say were the case, why would HMRC have settled out of court in the Winchester case and where one commentator concluded that the ET would have taken a dim view if Winchester hadn't settle out of court? Hewlett Packard offered me an out of court settlement, which I refused and this didn't seem to have any affect on the ET's consideration of my case. So once again, I can only relate to my own experiences. In the Winchester case, both HMRC and the ET seemed keen to have an out of court settlement. There was clearly some horse trading going on there.

  2. #22

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    Quote Originally Posted by webberg View Post
    There is no "Winchester case".

    The claim brought by Winchester was settled out of Court and the only commentary we have is from the potential claimant and those who put the case together. Both have reason for saying that the employer caved in because of the precedent it set.

    That might be true, but it may not.

    The employer may have decided to settle for a vast number of reasons including de minimus amounts, not wishing to open doors to claims, particular circumstances of the potential claimant, etc. Nobody knows.

    And nobody will know unless and until a case is brought before both an employment and tax tribunal and we see if the Judges are willing to consider judgments in the "other place".

    There is no evidence that this has or will happen.

    So the "Winchester" situation is a red herring and has no impact upon the post reform periods.
    granted there is no Winchester case per se. But the willingness of all parties concerned to settle out of court is revealing.

    In my opinion, and again based on my own experiences, we will never see the same engagement taken to both the FTT and the ET. The establishment couldn't risk it, as there are too many potential downsides from HMG's point of view. I would say that if someone in danger of a tax hit under IR35 were to declare that they would take their case to the ET if found against, providing that the case were within time, I reckon HMRC would withdraw. This happened in reverse to me.

  3. #23

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    Quote Originally Posted by JohntheBike View Post
    granted there is no Winchester case per se. But the willingness of all parties concerned to settle out of court is revealing.
    No it's not. Some think it was to avoid a case but there is also the financial reasons. More cases are settled this way than go the full term. HMRC weren't liable for any of the payments either.

    In my opinion, and again based on my own experiences, we will never see the same engagement taken to both the FTT and the ET. The establishment couldn't risk it, as there are too many potential downsides from HMG's point of view. I would say that if someone in danger of a tax hit under IR35 were to declare that they would take their case to the ET if found against, providing that the case were within time, I reckon HMRC would withdraw. This happened in reverse to me.
    And as usual your opinion is full of holes and woefully out of date but you won't be told.

    I'm not really understanding why we are spending so much time on the Winchester case at this point anyway.
    Last edited by northernladuk; 16th July 2019 at 14:02.
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  4. #24

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    Quote Originally Posted by webberg View Post
    I think the present losing streak for them in status cases is establishing a base line of cases where the boundaries will become clear.
    Surely this is key, but to me from a positive perspective for contractors.

    Increasingly there's case law where a judge has said based on criteria X, Y & Z, it's outside IR35. Therefore all the big corporate needs to do is ensure their contract and working practices tally nicely with X, Y & Z, and they can be reasonably confident they're safe.

    Yes I appreciate if for example X is "an actual substitute was sent in place of the contractor" then there may be a bunch of roles where the corporate isn't happy agreeing to that. In those situations they either need to find other case law that confidently backs an outside view, or those workers won't get outside IR35 positions.

  5. #25

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    Quote Originally Posted by JohntheBike View Post
    I don't see how you can be so sure about the negative aspects to HMRC in relation to the ET. If what you say were the case, why would HMRC have settled out of court in the Winchester case and where one commentator concluded that the ET would have taken a dim view if Winchester hadn't settle out of court? Hewlett Packard offered me an out of court settlement, which I refused and this didn't seem to have any affect on the ET's consideration of my case. So once again, I can only relate to my own experiences. In the Winchester case, both HMRC and the ET seemed keen to have an out of court settlement. There was clearly some horse trading going on there.
    You cannot possibly know that HMRC settled out of court "because" of the negative publicity. That is speculation and as I said, there may be lots of other reasons. One commentator says the ET may have taken a dim view, again speculation. That one commentator's view is no more valid than mine is on why HMRC just won't care about the publicity.

    You cannot cherry pick reasons or views. You have to be objective. I base mine on decades of working in the tax arena and speaking with HMRC officers at all levels on pretty much a daily basis.

    You seem to keep harking back to a set of personal circumstances that for all I know happened a long time ago and which may have little relevance today. HP offered to settle - I have to say that is irrelevant to the present situation and was for reasons known only to HP.

    I repeat - there is no Winchester case.

    We don't know why the parties settled out of Court. Given that Ms Winchester and her advisers make a lot of noise about "it's not the money it's the principle of being treated fairly", you have to ask what prompted them to accept the offer. Was it perhaps that they had not as strong a case as they thought? If they felt that they had a good case and great motive, they would surely have continued?

    Also the ET did not settle out of Court. The ET were the Court. The ET could not have been party to the agreement other than to perhaps approve it as an alternative to a hearing. That happens probably dozens of times every day.

    We are in a new world. Historical and especially very bespoke historical circumstances are of very limited application now.

    Government policy will perhaps seek to keep tax and employment law cases apart. No doubt many clever lawyers will be trying to do the opposite.

    Ultimately however the situation will be decided ONLY when a case is taken and that will require a contractor to take on a client. That is a brave shout.
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  6. #26

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    Quote Originally Posted by JohntheBike View Post
    granted there is no Winchester case per se. But the willingness of all parties concerned to settle out of court is revealing.

    In my opinion, and again based on my own experiences, we will never see the same engagement taken to both the FTT and the ET. The establishment couldn't risk it, as there are too many potential downsides from HMG's point of view. I would say that if someone in danger of a tax hit under IR35 were to declare that they would take their case to the ET if found against, providing that the case were within time, I reckon HMRC would withdraw. This happened in reverse to me.
    You may have a view that it is "revealing", but it is a view without evidence.

    Again, your personal history is irrelevant. Well done on winning, but it's ancient history.

    I would opine (just an opinion with no evidence yet) that your view as to HMRC withdrawal is completely incorrect.

    HMRC will follow the money and care naught for consequences at ET.
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  7. #27

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    Quote Originally Posted by webberg View Post
    Again, your personal history is irrelevant. Well done on winning, but it's ancient history.
    .
    He didn't. He lost, twice.
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  8. #28

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    Quote Originally Posted by northernladuk View Post
    He didn't. He lost, twice.
    and in doing so established that I couldn't be an employee of my client, disguised or otherwise. HMRC are fond of claiming they have "case law" when investigating individuals, however old that case law is. They quoted an old case to me when I was being investigated for my expenses claims. So I can't see that they can dismiss any case law that they might claim is old. The Ready Mixed Concrete case was judged in 1968 and yet still figures prominently in case law.

    Clearly my own personal experiences, however anyone dismisses them, will be the basis of my opinion. Opinions can be correct as well as incorrect.

  9. #29

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    Quote Originally Posted by webberg View Post
    You cannot possibly know that HMRC settled out of court "because" of the negative publicity. That is speculation and as I said, there may be lots of other reasons. One commentator says the ET may have taken a dim view, again speculation. That one commentator's view is no more valid than mine is on why HMRC just won't care about the publicity.

    You cannot cherry pick reasons or views. You have to be objective. I base mine on decades of working in the tax arena and speaking with HMRC officers at all levels on pretty much a daily basis.

    You seem to keep harking back to a set of personal circumstances that for all I know happened a long time ago and which may have little relevance today. HP offered to settle - I have to say that is irrelevant to the present situation and was for reasons known only to HP.

    I repeat - there is no Winchester case.

    We don't know why the parties settled out of Court. Given that Ms Winchester and her advisers make a lot of noise about "it's not the money it's the principle of being treated fairly", you have to ask what prompted them to accept the offer. Was it perhaps that they had not as strong a case as they thought? If they felt that they had a good case and great motive, they would surely have continued?

    Also the ET did not settle out of Court. The ET were the Court. The ET could not have been party to the agreement other than to perhaps approve it as an alternative to a hearing. That happens probably dozens of times every day.

    We are in a new world. Historical and especially very bespoke historical circumstances are of very limited application now.

    Government policy will perhaps seek to keep tax and employment law cases apart. No doubt many clever lawyers will be trying to do the opposite.

    Ultimately however the situation will be decided ONLY when a case is taken and that will require a contractor to take on a client. That is a brave shout.
    by negative publicity I meant in a legal sense with relation to IR35 and the contracting environment, i.e. interested organisations will attempt to use the circumstances to their benefit.

    and yes, I agree if the Winchester issue was one of the utmost importance, why was there a meagre out of court settlement.

    my case was heard in the EAT in December 2002. As far as I understand, it set a precedent and precedents remain until overturned by later judgements. As I've replied in another post, the RMC case was heard in 1968 and has never been overturned subsequently.

    There may very well be many out there who are so incensed by the situation that they will want to go to the ET. It isn't beyond the bounds of imagination that this will happen more frequently now.

  10. #30

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    Quote Originally Posted by JohntheBike View Post
    however old that case law is. They quoted an old case to me when I was being investigated for my expenses claims. So I can't see that they can dismiss any case law that they might claim is old. The Ready Mixed Concrete case was judged in 1968 and yet still figures prominently in case law.

    .
    HMRC use case law where it is relevant to tax statute. In many instances tax statute stays the same - words, intent and meaning - for decades and therefore a case heard when the law was young holds relevance until that law is changed.

    What tax Courts do not do is accept that a principle established under a different law (in this case employment law) binds a tax decision.
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