Fighting HMRC and IR35 Fighting HMRC and IR35 - Page 3
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  1. #21

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  2. #22

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    Dec 2014
    WTT Consulting Ltd - London and online


    I've said this elsewhere in slightly different ways but I'll say it again.

    1. In determining whether a position/role is inside or outside IR35, the contract is a relatively light item that comes into the picture only towards the end of a process that identifies and weighs FACTS, working practices, supervision, direction, control and a number of other factors.

    Don't forget that the legislation here asks the Judge to assess the facts and to then imagine what sort of contract would encompass those facts and would that theoretical or hypothetical contract look like an employment or not.

    We can discuss contracts and their nuances until we are blue in the face but if the description of the role etc in that contract is at odds with the facts, it will mean little in any contest before a Judge.

    2. The use of a boiler plate contract (often described as being one that ensures you are outside IR35) is by the nature of what is being tested, quite a dangerous "asset".

    I fail to see how a boiler plate contract (i.e. one in which all the operative provisions and descriptions are generic with perhaps a schedule that covers the actual role) can capture all the nuances of a role.

    I can see HMRC claim that 20 contractors in one company, all with the same generic contract, slight variances only in schedules, means that there are 20 employees.

    That is pretty obviously a sweeping generalisation and like most of its kind is almost certainly incorrect, but you can see the power of the arguments and potential for an easy win for HMRC.

    Whilst I'm sure that we will see such boilerplate contracts continue, if you look at the processes of the insurers in this space, they look at the facts and circumstances and do not use boilerplate documents.

    If you have been with intermediaries who have taken a one size fits all approach to documenting roles, I'd be looking at those very carefully just at the moment.
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