• Visitors can check out the Forum FAQ by clicking this link. You have to register before you can post: click the REGISTER link above to proceed. To start viewing messages, select the forum that you want to visit from the selection below. View our Forum Privacy Policy.
  • Want to receive the latest contracting news and advice straight to your inbox? Sign up to the ContractorUK newsletter here. Every sign up will also be entered into a draw to WIN £100 Amazon vouchers!

Should we be worried about retrospective claims?

Collapse
X
  •  
  • Filter
  • Time
  • Show
Clear All
new posts

    Should we be worried about retrospective claims?

    OK, hear me out on this one, we (well those who are moving from outside to inside with the same client) are all worried about HMRC pursuing retrospective claims, but should we? I'm pretty sure that the SDS I have from the client isn't worth the paper its written on. If HMRC were to open a retrospective case wouldn't this SDS be crux in their case, and putting it in front of a FTT or the like show it's flaws
    Originally posted by Stevie Wonder Boy
    I can't see any way to do it can you please advise?

    I want my account deleted and all of my information removed, I want to invoke my right to be forgotten.

    #2
    As a minimum, you should be worried about the stress for you and your family. As a maximum, you should be worried about that plus the very real downside of the client supporting HMRC in arguing against everything you are saying. I’d say that’s pretty real. Until now, the probability of an investigation has been low, but it may well increase, post April, in the situation you describe (depends whether you believe HMRC).

    Comment


      #3
      Originally posted by SimonMac View Post
      OK, hear me out on this one, we (well those who are moving from outside to inside with the same client) are all worried about HMRC pursuing retrospective claims, but should we? I'm pretty sure that the SDS I have from the client isn't worth the paper its written on. If HMRC were to open a retrospective case wouldn't this SDS be crux in their case, and putting it in front of a FTT or the like show it's flaws
      Possibly, the first step should be to challenge their assessment and provide evidence to show why you believe you are not caught by IR35. Your client would then have 45 days to respond showing you not only how they arrived at that decision but also demonstrating how they've taken reasonable care.

      Of course, that's under the new rules which will only come into effect when the legislation is passed. This current government are in real danger of not even delivering a budget before the new fiscal year so pop on your guessing hat and joing the party because guessing how this is going to work seems to be all any of us can do with this at the moment.

      Comment


        #4
        While this question has been raised and answered numerous times, I wonder, and have voiced elsewhere, that if the HMRC wanted to bring about a retrospective claim, and you/one/we all have the necessary legal insurance in place to tackle such, that in court, with the 'right thinking minds' that have won for contractors the lion's share of IR35 related court cases, this would be an opportunity to show clients just how easy it is to win cases with IR35.

        Of course, the proof will be in the figgy duff, but in a slightly masochistic sense, I would welcome such an opportunity and would bring the client to the proceedings to witness every - sorry - step of the process.

        And then, in the same way he says there is no evidence of any blanketing, we could witness Jesse Norman proclaiming that the HMRC don't bring about retrospective cases and that the HMRC haven't lost any IR35 related court cases.

        Or some equal nonsense.

        Comment


          #5
          I'm not.

          Comment


            #6
            Originally posted by BR14 View Post
            I'm not.
            Because you're not going to be inside?
            Originally posted by Stevie Wonder Boy
            I can't see any way to do it can you please advise?

            I want my account deleted and all of my information removed, I want to invoke my right to be forgotten.

            Comment


              #7
              It's a risk that's impossible to quantify and I think that's the most worrying aspect.

              I do believe they won't launch targeted campaigns for retrospective investigation as the effort required to identify a target with enough chance of success is beyond their resourcing.

              I also believe this means they will continue with their scattergun approach that's more like an unlucky tombola at the village fete. Compliance (HMRC's view of it) will be driven by fear not by fact until a few cases come to court and case law sets a precedent or two.

              Comment


                #8
                Originally posted by SimonMac View Post
                Because you're not going to be inside?
                i've only used brolly since i returned to UK.

                Comment


                  #9
                  Originally posted by jamesbrown View Post
                  As a minimum, you should be worried about the stress for you and your family. As a maximum, you should be worried about that plus the very real downside of the client supporting HMRC in arguing against everything you are saying. I’d say that’s pretty real. Until now, the probability of an investigation has been low, but it may well increase, post April, in the situation you describe (depends whether you believe HMRC).
                  Stress plus the cost of the investigation (financially and in time spent) would be enough to make me worry.

                  I plan to close my company early in the next tax year, as I see little to no benefit of keeping it.
                  I'm not fat, I'm just fluffy.

                  Comment


                    #10
                    Originally posted by SimonMac View Post
                    OK, hear me out on this one, we (well those who are moving from outside to inside with the same client) are all worried about HMRC pursuing retrospective claims, but should we? I'm pretty sure that the SDS I have from the client isn't worth the paper its written on. If HMRC were to open a retrospective case wouldn't this SDS be crux in their case, and putting it in front of a FTT or the like show it's flaws
                    Bolded bit - Absolutely you should. The cost and stress of getting there, win or no win will be highly unpleasant. I'll bet if they do start spamming investigations, even with the knowledge it might be beatable there will be some terrible personal fall out as per the loan charge. Not worrying about retro investigations because an SDS might be pulled apart is very foolish. QDOS have the ability to walk away from this if they don't like it. Where will that leave you? But that said, the question on the situation..

                    I think the bottom line is that if the SDS has been put together with some level or reasonable care and attention it stands in a very strong position. It may even trump working practices, particularly at the beginning as it's the framework they expect the role to meet. In the early days with little evidence of the new engagement it will probably be the baseline. To go to FTT you are going to have a very solid case to be spending that amount of time and effort to get there. Complaining you can WFH, you don't think you are under D&C etc are very tenuous when you are faced with a case like this and QDOS would have to agree else they'll drop the case.

                    It wouldn't show it's flaws as such, it would open areas that would have be investigated and argued, albeit from a particularly weak point that you don't think it's fair or that your working practices have flexed a little to suit you. That doesn't mean the SDS isn't invalid.

                    We've repeated the mantra that the risk is on the client as it is their SDS and that is our protection going forward. We can't flip that 180 when it suits us to then say SDS doesn't mean anything when it suits us. I think a case where an inside SDS is challenged and loses sets a very dangerous precedent where HMRC will want to look at outside ones. The risk is with the client? If this starts falling apart I find it hard to believe we will come out unscathed.

                    If this ever gets to FTT then you've lost already to be fair. The time, effort and stress will be very uncomfortable. Your only defence is that the FTT will have to dig through the minute detail to find some flaws that may or may not be enough to turn the case in your favour is tenuous at best. Will QDOS et al be supporting you this far even?

                    It's an interesting question and one that is very likely to happen. I really don't think there is anything tangible we can say that will help alleviate the amount of risk to help anyone that is in this position. If anything it scares me even more now you've mentioned it.
                    'CUK forum personality of 2011 - Winner - Yes really!!!!

                    Comment

                    Working...
                    X