Gov Facility Services gets IR35 status wrong Gov Facility Services gets IR35 status wrong
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  1. #1

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    Default Gov Facility Services gets IR35 status wrong

    "GFSL employed a large number of contractors throughout the period, some of whom were engaged off-payroll. GFSL used all available resources to judge whether contractors were in
    scope for IR35, and informed the agencies through which these contractors had been recruited of their IR35 status. These initial reviews identified a number of individuals as out of the scope
    of IR35. Following further advice, it has now been determined that these individuals should have been treated as inside the scope of IR35 and action has been taken to rectify this treatment.
    As GFSL is a public sector body, responsibility for the historic liability for any underpaid tax sits with GFSL, rather than the individual.
    "

    Page 92
    Gov Facility Services Limited Annual Report October 2019

    I'm guessing when it says historic liability, it just means up to when the IR35 public sector reform took place.

  2. #2

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    Quote Originally Posted by krytonsheep View Post
    "GFSL employed a large number of contractors throughout the period, some of whom were engaged off-payroll. GFSL used all available resources to judge whether contractors were in
    scope for IR35, and informed the agencies through which these contractors had been recruited of their IR35 status. These initial reviews identified a number of individuals as out of the scope
    of IR35. Following further advice, it has now been determined that these individuals should have been treated as inside the scope of IR35 and action has been taken to rectify this treatment.
    As GFSL is a public sector body, responsibility for the historic liability for any underpaid tax sits with GFSL, rather than the individual.
    "

    Page 92
    Gov Facility Services Limited Annual Report October 2019

    I'm guessing when it says historic liability, it just means up to when the IR35 public sector reform took place.
    "Following further advice..." After a visit from HMRC
    "Being nice costs nothing and sometimes gets you extra bacon" - Pondlife.

  3. #3

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    Quote Originally Posted by krytonsheep View Post
    "GFSL used all available resources to judge whether contractors were in scope for IR35, and informed the agencies through which these contractors had been recruited of their IR35 status. These initial reviews identified a number of individuals as out of the scope.
    I would love to know what all those resources were.

    If the contractors were ruled outside, almost by definition, that rules out the use of the CEST 'resource'.

    So if not that, did GFSL utilise some other more, impartial advice? And if so, what?

  4. #4

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    Quote Originally Posted by simes View Post
    I would love to know what all those resources were.

    If the contractors were ruled outside, almost by definition, that rules out the use of the CEST 'resource'.

    So if not that, did GFSL utilise some other more, impartial advice? And if so, what?
    As a public sector body you could submit and FOI request for that info. As far as I can tell they sit under the MOJ but I can't find any on-line contact forms etc for them.

    UPDATE : Found their website - Home

    Googling for Government Facilities Service returns pretty much everything to do with them part from that link. Ended up finding them on LinkedIn and getting the URL from there.

    Email contact address gfsl_communications@govfsl.com

    Quick and dirty draft of an FOI request:

    Dear Sir/Madam,

    I wish to request information under the Freedom of Information Act regarding the process and supporting information used to determine IR35 status for contractors employed off payroll as described in your annual report published in October this year.

    "GFSL employed a large number of contractors throughout the period, some of whom were engaged off-payroll. GFSL used all available resources to judge whether contractors were in
    scope for IR35, and informed the agencies through which these contractors had been recruited of their IR35 status. These initial reviews identified a number of individuals as out of the scope
    of IR35. Following further advice, it has now been determined that these individuals should have been treated as inside the scope of IR35 and action has been taken to rectify this treatment.
    As GFSL is a public sector body, responsibility for the historic liability for any underpaid tax sits with GFSL, rather than the individual."

    Please provide details of:

    1. The process followed,
    2. The resources referred to,
    3. The basis for the original judgements
    4. The “Further advice” received,
    5. The source of that advice,
    6. How that advice impacted the process
    7. The basis on which the revised judgement, previously judged out of scope was arrived at.

    Regards,
    Last edited by DaveB; 28th October 2019 at 10:01.
    "Being nice costs nothing and sometimes gets you extra bacon" - Pondlife.

  5. #5

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    Quote Originally Posted by DaveB View Post
    As a public sector body you could submit and FOI request for that info. As far as I can tell they sit under the MOJ but I can't find any on-line contact forms etc for them.

    UPDATE : Found their website - Home

    Googling for Government Facilities Service returns pretty much everything to do with them part from that link. Ended up finding them on LinkedIn and getting the URL from there.

    Email contact address gfsl_communications@govfsl.com

    Quick and dirty draft of an FOI request:
    you could submit and FOI request for that info
    it would be better if one of our "representative" organisations did this. But then IPSE doesn't seem to be interested in FOI's. Dave Chaplin might though.

  6. #6

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    Ok, very impressed!

    Incredibly so, that I have just sent your very email to them.

    If I get anything back, I will pop it up here.

    All the best.

  7. #7

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    Quote Originally Posted by simes View Post
    Ok, very impressed!

    Incredibly so, that I have just sent your very email to them.

    If I get anything back, I will pop it up here.

    All the best.
    Perhaps better to have done through WhatDoTheyKnow - Make and browse Freedom of Information (FOI) requests As it then becomes easily accessible to all.

  8. #8

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    Quote Originally Posted by DaveB View Post
    As a public sector body you could submit and FOI request for that info. As far as I can tell they sit under the MOJ but I can't find any on-line contact forms etc for them.

    UPDATE : Found their website - Home

    Googling for Government Facilities Service returns pretty much everything to do with them part from that link. Ended up finding them on LinkedIn and getting the URL from there.

    Email contact address gfsl_communications@govfsl.com

    Quick and dirty draft of an FOI request:
    Hello DaveB,

    Very well done. Subsequent to your 'straight off the mark' input, the questions being sent, we now have a reply.

    Please find below. I am not sure if there is evidence of the HMRC NOT standing by the output of their CessPool, sorry, CEST Tool. It depends on from whom the Challenge came, before they took the advice of the MoJ. Would the Challenge and Advice come from one and the same? Challenge from HMRC followed by Advice from MoJ? Thoughts?

    Am happy to follow up...


    Dear Mr [Simes]

    Your request for information has now been considered and the information requested provided below.

    "GFSL employed a large number of contractors throughout the period, some of whom were engaged off-payroll. GFSL used all available resources to judge whether contractors were in scope for IR35, and informed the agencies through which these contractors had been recruited of their IR35 status. These initial reviews identified a number of individuals as out of the scope of IR35. Following further advice, it has now been determined that these individuals should have been treated as inside the scope of IR35 and action has been taken to rectify this treatment.

    As GFSL is a public sector body, responsibility for the historic liability for any underpaid tax sits with GFSL, rather than the individual."

    Please provide details of:

    1. The process followed,
    GFSL as the engager took all reasonable care to determine the employment status of all of its contractors at the point of engagement. This involved reviewing role requirements in line with GFSL and HMRC guidance and the HMRC Website including the checking tool https://www.tax.service.gov.uk/check...-for-tax/setup

    2. The resources referred to,
    The main source of guidance was the HMRC Website including the HMRC employment status checking tool https://www.tax.service.gov.uk/check...-for-tax/setup
    advice and guidance from MoJ’s tax expert advisors.

    3. The basis for the original judgements
    GFSL as the engager undertook all process activities in accordance with published guidance, legislation and through the use of the Check Employment Status to arrive at the original judgement. These can be accessed via the Gov.uk website: off-payroll working in the public sector: reform of the intermediaries legislation - Gov. uk

    4. The “Further advice” received,
    A challenge received determined that a review of the principles against the job role be considered to determine if the off-payroll principles were applicable.

    5. The source of that advice,
    Advice and guidance from MoJ’s tax centre of excellence

    6. How that advice impacted the process
    Further analysis was undertaken to consider the advice provided which informed a change in employment status

    7. The basis on which the revised judgement,
    Roles were reviewed against the principles using the HMRC employment status checking tool https://www.tax.service.gov.uk/check...-for-tax/setup

    Kind regards
    Yours sincerely

  9. #9

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    Quote Originally Posted by simes View Post
    Hello DaveB,

    Very well done. Subsequent to your 'straight off the mark' input, the questions being sent, we now have a reply.

    Please find below. I am not sure if there is evidence of the HMRC NOT standing by the output of their CessPool, sorry, CEST Tool. It depends on from whom the Challenge came, before they took the advice of the MoJ. Would the Challenge and Advice come from one and the same? Challenge from HMRC followed by Advice from MoJ? Thoughts?

    Am happy to follow up...


    Dear Mr [Simes]

    Your request for information has now been considered and the information requested provided below.

    "GFSL employed a large number of contractors throughout the period, some of whom were engaged off-payroll. GFSL used all available resources to judge whether contractors were in scope for IR35, and informed the agencies through which these contractors had been recruited of their IR35 status. These initial reviews identified a number of individuals as out of the scope of IR35. Following further advice, it has now been determined that these individuals should have been treated as inside the scope of IR35 and action has been taken to rectify this treatment.

    As GFSL is a public sector body, responsibility for the historic liability for any underpaid tax sits with GFSL, rather than the individual."

    Please provide details of:

    1. The process followed,
    GFSL as the engager took all reasonable care to determine the employment status of all of its contractors at the point of engagement. This involved reviewing role requirements in line with GFSL and HMRC guidance and the HMRC Website including the checking tool https://www.tax.service.gov.uk/check...-for-tax/setup

    2. The resources referred to,
    The main source of guidance was the HMRC Website including the HMRC employment status checking tool https://www.tax.service.gov.uk/check...-for-tax/setup
    advice and guidance from MoJ’s tax expert advisors.

    3. The basis for the original judgements
    GFSL as the engager undertook all process activities in accordance with published guidance, legislation and through the use of the Check Employment Status to arrive at the original judgement. These can be accessed via the Gov.uk website: off-payroll working in the public sector: reform of the intermediaries legislation - Gov. uk

    4. The “Further advice” received,
    A challenge received determined that a review of the principles against the job role be considered to determine if the off-payroll principles were applicable.

    5. The source of that advice,
    Advice and guidance from MoJ’s tax centre of excellence

    6. How that advice impacted the process
    Further analysis was undertaken to consider the advice provided which informed a change in employment status

    7. The basis on which the revised judgement,
    Roles were reviewed against the principles using the HMRC employment status checking tool https://www.tax.service.gov.uk/check...-for-tax/setup

    Kind regards
    Yours sincerely

    Point 4 is incorrect. It's perfectly possible for 2 people to be performing the same role but the way they work being different enough that one is inside IR35 and 1 is outside.

    If they have determined things based on a job role by job role basis it is a blanket approach which is incorrect.

    It's worth emphasising this as the biggest reason why 2 people doing the same role will have different outcomes is due to Mutuality of Obligation (MOO) and MOO is the biggest flaw in the CEST tool as HMRC don't believe in it.
    merely at clientco for the entertainment

  10. #10

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    Quote Originally Posted by simes View Post
    Hello DaveB,

    Very well done. Subsequent to your 'straight off the mark' input, the questions being sent, we now have a reply.

    Please find below. I am not sure if there is evidence of the HMRC NOT standing by the output of their CessPool, sorry, CEST Tool. It depends on from whom the Challenge came, before they took the advice of the MoJ. Would the Challenge and Advice come from one and the same? Challenge from HMRC followed by Advice from MoJ? Thoughts?

    Am happy to follow up...


    Dear Mr [Simes]

    Your request for information has now been considered and the information requested provided below.

    "GFSL employed a large number of contractors throughout the period, some of whom were engaged off-payroll. GFSL used all available resources to judge whether contractors were in scope for IR35, and informed the agencies through which these contractors had been recruited of their IR35 status. These initial reviews identified a number of individuals as out of the scope of IR35. Following further advice, it has now been determined that these individuals should have been treated as inside the scope of IR35 and action has been taken to rectify this treatment.

    As GFSL is a public sector body, responsibility for the historic liability for any underpaid tax sits with GFSL, rather than the individual."

    Please provide details of:

    1. The process followed,
    GFSL as the engager took all reasonable care to determine the employment status of all of its contractors at the point of engagement. This involved reviewing role requirements in line with GFSL and HMRC guidance and the HMRC Website including the checking tool https://www.tax.service.gov.uk/check...-for-tax/setup

    2. The resources referred to,
    The main source of guidance was the HMRC Website including the HMRC employment status checking tool https://www.tax.service.gov.uk/check...-for-tax/setup
    advice and guidance from MoJ’s tax expert advisors.

    3. The basis for the original judgements
    GFSL as the engager undertook all process activities in accordance with published guidance, legislation and through the use of the Check Employment Status to arrive at the original judgement. These can be accessed via the Gov.uk website: off-payroll working in the public sector: reform of the intermediaries legislation - Gov. uk

    4. The “Further advice” received,
    A challenge received determined that a review of the principles against the job role be considered to determine if the off-payroll principles were applicable.

    5. The source of that advice,
    Advice and guidance from MoJ’s tax centre of excellence

    6. How that advice impacted the process
    Further analysis was undertaken to consider the advice provided which informed a change in employment status

    7. The basis on which the revised judgement,
    Roles were reviewed against the principles using the HMRC employment status checking tool https://www.tax.service.gov.uk/check...-for-tax/setup

    Kind regards
    Yours sincerely
    I am not sure if there is evidence of the HMRC NOT standing by the output of their CessPool, sorry, CEST Tool.
    check out the Alcock case where HMRC tried to prevent evidence from the CEST tool being submitted in court.

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