I want to know if it is just me, and I'm being daft and overlooking something. If I'm correct, this whole 'reform' is in violation of the ECHR and we should have a judicial review.
Source, European Convention on Human Rights.
Article 6, Right to a Fair Trial
1. "In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law."
I'd like to suggest the following main points:
A. It seems to me clearly evident that an IR35 determination is a "determination" of a contractor's "civil rights and obligations." It is determining how much tax he must pay (and how, and when), which is certainly a civil obligation.
B. It seems to me that the IR35 reform does not guarantee a public hearing in this determination. We are hearing from some contractors that questionnaires they are supposed to answer already have some questions answered, and in some cases they cannot see the answer. There is nothing in the legislation that requires the client to inform the contractor of all the factors used to determine his tax liabilities.
C. It seems to me that the IR35 reform does not guarantee a fair hearing. As noted above, the contractor may not even be informed of all the evidence used to make the determination, which means he has no opportunity to respond to it or correct errors. Furthermore, there is no requirement for a fair appeals process.
D. Most egregious, the determination is not made by "an independent and impartial tribunal." Clients are making decisions that impose tax liabilities on contractors, at least in part basing those decisions on their own risk tolerance and their own business interests, rather than strictly on fact and law.
I'm not one to say, "I don't like it, it must be illegal." The law has always been an ass and not everything stupid is illegal. But this one appears to be in direct violation of the specific provision I've cited. I'm not a lawyer, so feel free to say I'm out of my mind.
The new rules do not (yet) directly affect me and my company because I can stick with just foreign clients for some time. I have too many responsibilities to front anything or drive it forward. But if my argument here makes sense I'd certainly be willing to contribute towards a legal challenge based on the above.
Source, European Convention on Human Rights.
Article 6, Right to a Fair Trial
1. "In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law."
I'd like to suggest the following main points:
A. It seems to me clearly evident that an IR35 determination is a "determination" of a contractor's "civil rights and obligations." It is determining how much tax he must pay (and how, and when), which is certainly a civil obligation.
B. It seems to me that the IR35 reform does not guarantee a public hearing in this determination. We are hearing from some contractors that questionnaires they are supposed to answer already have some questions answered, and in some cases they cannot see the answer. There is nothing in the legislation that requires the client to inform the contractor of all the factors used to determine his tax liabilities.
C. It seems to me that the IR35 reform does not guarantee a fair hearing. As noted above, the contractor may not even be informed of all the evidence used to make the determination, which means he has no opportunity to respond to it or correct errors. Furthermore, there is no requirement for a fair appeals process.
D. Most egregious, the determination is not made by "an independent and impartial tribunal." Clients are making decisions that impose tax liabilities on contractors, at least in part basing those decisions on their own risk tolerance and their own business interests, rather than strictly on fact and law.
I'm not one to say, "I don't like it, it must be illegal." The law has always been an ass and not everything stupid is illegal. But this one appears to be in direct violation of the specific provision I've cited. I'm not a lawyer, so feel free to say I'm out of my mind.
The new rules do not (yet) directly affect me and my company because I can stick with just foreign clients for some time. I have too many responsibilities to front anything or drive it forward. But if my argument here makes sense I'd certainly be willing to contribute towards a legal challenge based on the above.
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