SDS Appeal SDS Appeal
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Thread: SDS Appeal

  1. #1

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    Default SDS Appeal

    I've been contracting with the same client for a few years outside IR35. Current contract runs until end of April 2020. Possibility of extension/new contract has been mentioned informally (-I know "alarm bells ringing").

    I've heard on the grapevine that clientco is planning to send out inside IR35 Status Determination Statements to myself and possibly all other contractors based in the same office in the next week or so. I am aware that I am now in risk reduction (=damage limitation) mode as regards a possible future outside/inside HMRC investigation.

    I have read a lot of the threads on here but haven't seen much on SDS appeals. Maybe because most of the big players are not issuing SDS but refusing to employ PSCs going forward.

    My current thinking is to start looking for another position and hand in notice end of Feb in order to get out before the April 6th deadline kicks in.

    However, I'm wondering about the pros/cons of an SDS appeal. I understand that clientco has the final say, so the chances of winning the appeal are minimal. However, if I leave without lodging an appeal, would that count against me in the event of an HMRC investigation, ie. by not appealing I was tacitly accepting the clientco's inside IR35 determination? I may have to get out before the appeal process runs its course, but wonder whether simply lodging an appeal before I go would reduce my risk in the long run. I know no one can say for certain but I would be interested opinions on this.

    Also, I would be interested in others experience of SDS appeals.

  2. #2

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    Default SDS Appeal

    Wish you well in finding another position in this market, is your current contract outside IR35? (Qdos confirms etc) or are you just winging it?


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  3. #3

    Still gathering requirements...


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    Payments received after April are ok so no need to quit early

  4. #4

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    Quote Originally Posted by genius View Post
    Payments received after April are ok so no need to quit early
    Quit and warm the bench for the next year

    Top idea


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  5. #5

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    Quote Originally Posted by Blencathra View Post
    However, I'm wondering about the pros/cons of an SDS appeal. I understand that clientco has the final say, so the chances of winning the appeal are minimal. However, if I leave without lodging an appeal, would that count against me in the event of an HMRC investigation, ie. by not appealing I was tacitly accepting the clientco's inside IR35 determination? I may have to get out before the appeal process runs its course, but wonder whether simply lodging an appeal before I go would reduce my risk in the long run. I know no one can say for certain but I would be interested opinions on this.
    This was my train of thought in my post about going the ET route afterwards.

    Client makes inside SDS determination using standard tickbox, based on their perception of the what the contractor is doing, making no reference to the conract.

    Any SDS should be carried out on the contract, not what they perceive the contractor is doing.

    Although in Elbourn v The Met Office, there was no mention that Elbourn appealed the SDS, it would seem he just serviced the contract, then lodged the ET afterwards.

    IMHO you need to appeal to keep a paper trail. You don't need to give a reason other than you believe you are working outside. Client then says no we are standing by the SDS we received from our internal review and CEST.

    You then take the evidence to ET and claim they can't have their cake and eat it.

    Same applies to Hector, although it's known that they won't play by the rules, it's still one more piece of evidence you can use.

  6. #6

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    Is all that really worth it? It's going to be a long expensive process and I can't imagine the client will keep you around long oncw you've started making waves. What happens if they decide to go no PSC to avoid it happening again? That's gonna make you popular.

    You go through the whole process and lose. That's gonna cost you bearing in mind you are unlikely to be in a gig. When a court has proven your inside HMRC comes knocking for their retro money and doesn't even have to take you to court because you've already lost.

    Just go get another gig.
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  7. #7

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    Quote Originally Posted by Blencathra View Post
    I've been contracting with the same client for a few years outside IR35.....
    HTML Code:
    [B]My current thinking is to start looking for another position and hand in notice end of Feb in order to get out before the April 6th deadline kicks in[/B].
    Given the few years bit you have said there, the thinking you have got right there, is the best idea. Leave and never even drive anywhere close to that client place, ever!

    Serious!

  8. #8

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    Quote Originally Posted by northernladuk View Post
    Is all that really worth it? It's going to be a long expensive process and I can't imagine the client will keep you around long oncw you've started making waves. What happens if they decide to go no PSC to avoid it happening again? That's gonna make you popular.

    You go through the whole process and lose. That's gonna cost you bearing in mind you are unlikely to be in a gig. When a court has proven your inside HMRC comes knocking for their retro money and doesn't even have to take you to court because you've already lost.

    Just go get another gig.
    You go through the whole process and lose.
    no one can lose. Granted, if the contractor is still engaged by the client, then the contract will be terminated.

    When a court has proven your inside HMRC comes knocking
    wrong.

    If the ET says your are self employed, then HMRC can't come after you.
    if the ET says you were employed, then HMRC still can't come after you, and then the client has to repay the unpaid employment benefits, the corporation tax etc. can be reclaimed and HMRC will chase the client for the unpaid taxes.

  9. #9

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    Quote Originally Posted by JohntheBike View Post
    no one can lose. Granted, if the contractor is still engaged by the client, then the contract will be terminated.
    How can no one lose? The determination is challenged, goes to court, they decide clients decision stands. Thst is a loss for the contractor is it not. IMO they'll terminate the contractor much earlier than court. I got warned off chasing a decision in public sector after only two conversations let alone talking about court.


    wrong.

    If the ET says your are self employed, then HMRC can't come after you.
    if the ET says you were employed, then HMRC still can't come after you, and then the client has to repay the unpaid employment benefits, the corporation tax etc. can be reclaimed and HMRC will chase the client for the unpaid taxes.
    This isn't about ET and employment. This is the contractor challenging an inside outside determination.
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  10. #10

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    Quote Originally Posted by northernladuk View Post
    How can no one lose? The determination is challenged, goes to court, they decide clients decision stands. Thst is a loss for the contractor is it not. IMO they'll terminate the contractor much earlier than court. I got warned off chasing a decision in public sector after only two conversations let alone talking about court.



    This isn't about ET and employment. This is the contractor challenging an inside outside determination.
    the poster made this comment -

    You then take the evidence to ET and claim they can't have their cake and eat it.
    so clearly a link was being established between the SDS and an ET claim.

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