Originally posted by webberg
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Originally posted by webberg View PostThere 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.
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.Comment
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Originally posted by JohntheBike View Postgranted 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.
I'm not really understanding why we are spending so much time on the Winchester case at this point anyway.Last edited by northernladuk; 16 July 2019, 14:02.'CUK forum personality of 2011 - Winner - Yes really!!!!Comment
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Originally posted by webberg View PostI think the present losing streak for them in status cases is establishing a base line of cases where the boundaries will become clear.
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.Comment
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Originally posted by JohntheBike View PostI 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 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.Best Forum Adviser & Forum Personality of the Year 2018.
(No, me neither).Comment
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Originally posted by JohntheBike View Postgranted 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.
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.Best Forum Adviser & Forum Personality of the Year 2018.
(No, me neither).Comment
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Originally posted by webberg View PostAgain, your personal history is irrelevant. Well done on winning, but it's ancient history.
.'CUK forum personality of 2011 - Winner - Yes really!!!!Comment
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Originally posted by northernladuk View PostHe didn't. He lost, twice.
Clearly my own personal experiences, however anyone dismisses them, will be the basis of my opinion. Opinions can be correct as well as incorrect.Comment
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Originally posted by webberg View PostYou 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.
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.Comment
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Originally posted by JohntheBike View Posthowever 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.
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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.Best Forum Adviser & Forum Personality of the Year 2018.
(No, me neither).Comment
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