Question on determination - advice needed please

**boxingbantz** · 6 November 2019, 11:36

Originally posted by trailfinder09 View Post

I have been reading the forum for a while but this is my first post. Having read a lot about determination and options on what everyone is planning to do to avoid being caught inside IR35, I still have a question on option of leaving the company.

My company seems to be making determination by the end of November and my contract is until end of March 2020. If my role is determined as 'inside', (that seems to be the approach the company is taking towards its contractors) and I refuse to accept their determination and continue working till end of February and then leave - Does it put it me in a risky situation when HMRC can be going after me even when I am gone? Or do I need to leave once determination is made but this puts me out in the market with no new gigs to go to...

My understanding the determination lists will not be provided to HMRC but they HMRC can request to see them and the company has to provide them...

Any advice would be much appreciated

No one really knows but if you don't want to be inside, don't accept the contract and, if you are investigated and you are DEFINITELY outside, you shouldn't have anything to worry about if you can prove it.

I was working outside at a PS client. They were going to deem all contractors inside and go via umbrella so I didn't accept and have now left. I was definitely outside of IR35 and would have no worry justifying this if investigated.

**GhostofTarbera** · 6 November 2019, 12:04

You mean your client not your company ??

Ohhh boy you will be in trouble when HMRC come calling

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**simes** · 6 November 2019, 12:09

Originally posted by boxingbantz View Post

I was working outside at a PS client.

When will people remember that PS can serve equally well, Private Sector and Public Sector?

**Paralytic** · 6 November 2019, 12:11

Originally posted by simes View Post

When will people remember that PS can serve equally well, Private Sector and Public Sector?

PS. It can also stand for other things.

**DeludedKitten** · 6 November 2019, 12:32

Originally posted by trailfinder09 View Post

Does it put it me in a risky situation when HMRC can be going after me even when I am gone? Or do I need to leave once determination is made but this puts me out in the market with no new gigs to go to...

IMHO only you are at no greater risk of an investigation than you already are.

Until the new legislation is in place, it is your responsibility to make the determination and to deduct the correct taxes. The opinion of the client is just an opinion, and depending on how they are making that determination might be one that is an opinion based on little or no fact. It would almost certainly make any investigation harder to win if HMRC knew that the client think you're inside, but that does not mean that the case is unwinnable with good legal protection.

**trailfinder09** · 7 November 2019, 12:53

Originally posted by GhostofTarbera View Post

You mean your client not your company ??

Ohhh boy you will be in trouble when HMRC come calling

Sent from my iPhone using Contractor UK Forum

Of, course my client :-)

**trailfinder09** · 7 November 2019, 13:02

Thanks everyone who has replied.
Just to reconfirm that it's ok NOT to accept the incorrect determination and simply leave? Min risks?

And will it be a red flag if I do not accept the incorrect client's determination and continue working till, say, Feb and then leave? Or will the HMRC will still get interested even if I have left. I would think they would be pretty busy in April but would like to know if they did go after contractors who left in Public Sector. Surely they would be following the tested route? Anyone knows?

**Paralytic** · 7 November 2019, 15:20

Originally posted by trailfinder09 View Post

Thanks everyone who has replied.
Just to reconfirm that it's ok NOT to accept the incorrect determination and simply leave? Min risks?

And will it be a red flag if I do not accept the incorrect client's determination and continue working till, say, Feb and then leave? Or will the HMRC will still get interested even if I have left. I would think they would be pretty busy in April but would like to know if they did go after contractors who left in Public Sector. Surely they would be following the tested route? Anyone knows?

You do not accept or not accept a determination. You can appeal, and the client will/might look into it, but that's it. You really are not in a position to accept or otherwise, other than as a box ticking exercise.

As two whether it will be a red flag, no-one knows. However, if HMRC investigated you, and they found out a client determination had found your role inside at the end for 2019, and you had decided to stay on for a few months and still self-determined outside, how do you think they might react?

One thing to find out - is the determination in November an official one that could end up with HMRC, or is at just a fact finding exercise, but the "legal" determination won't take place till nearer April?

But ignore the fact that HMRC will be busy in April - they have years, if they so wish, to work through a backlog of targets. Of course, they've said they won't target people who do move from outside to inside.

My agency told me that HMRC went after NO (ie zero, ni, nada) contractors who had self-determined outside IR35 and then went Umbrella with the same client when IR35 was rolled out through the public sector.

Do I believe them? They also said that all T&M contracts would automatically fall inside IR35 and only SOW contracts could be outside.

Question on determination - advice needed please