Reply to: SDS Appeal

[Lance]

<snip>I've only been here three months thus far <snip>

so in a very worst case scenario you get hit for 3 months of tax.
HMRC aren't going to take you to a tax tribunal over that when they've not got a very strong case. Their case is much weakened by an SDS after April 6th.

Stop worrying.

[mudskipper]

They have to provide this as part of the legislation so you should be OK there.

The legislation doesn't come into effect till the 6th April though. Presumably they don't have to provide anything at all before then.

[CompoundOverload]

They have to provide this as part of the legislation so you should be OK there.

I don't think they will be looking at them closely TBH. They will see inside, previously outside and just jump in both feet first. Common sense and proper diligence aren't words normally associated with HMRC

Agreed - simplicity is certainly not their forte.

It gives me comfort that the client has agreed outside, so before the new reforms nothing has changed. So in theory it's bullet proof.

[northernladuk]

I'd want at the very least some SDS in writing from the client before accepting to go past April in an outside capacity as I suspect HM will be looking at the outside/outside arrangements more closely.

They have to provide this as part of the legislation so you should be OK there.

I don't think they will be looking at them closely TBH. They will see inside, previously outside and just jump in both feet first. Common sense and proper diligence aren't words normally associated with HMRC

[CompoundOverload]

After April 6th the liability rests with the end client. They make the determination and it's their problem if they get it wrong.
Which they won't as they'll just say that they'd accept a sub if you provided a suitably qualified one.

The agency contract wording I have actually mentions substitute a lot!

But my problem for the pre-April aspect if it's proved incorrect (although fully confident it's outside based on how I am operating). I've only been here three months thus far but contract post April could go on for another year so keen to hang on and ensure everything is in place.

I'd want at the very least some SDS in writing from the client before accepting to go past April in an outside capacity as I suspect HM will be looking at the outside/outside arrangements more closely.

[Lance]

If you're operating outside with the clientco (contract reviewed and passed by Qdos) now and they wish to keep you on post April outside, what clarification do you need from the agency?

I've been advised by the agency that the end client will be making an outside SDS determination.

However, I am not fully confident I can just rely on that alone? Do I simply just ask the agency for proof in writing from client before agreeing to stay on?

What do I need to do in addition to this to make it bullet proof? does the agency re-issue a new contract or do I keep the existing and if an outside SDS is made do Qdos need to revisit their decision re insurance?

do I need a written SDS from the client and what should it say exactly?

If an investigation ever arose and it was proved I was inside, would I only be responsible for the repayment of taxes for pre-April part of the engagement and post April it would be the client?

After April 6th the liability rests with the end client. They make the determination and it's their problem if they get it wrong.
Which they won't as they'll just say that they'd accept a sub if you provided a suitably qualified one.

[CompoundOverload]

It's perfectly legal. It's not meaningless. It is what it is. A contract for services between yourco and the agency.
The agency are the one with the problem in that if there is a mismatch they are the ones on the hook. And that's why they have short notice periods, usually shorter than the upstream notice.

As for RoS. In most cases it's a sham. Most clients wouldn't accept and most agents wouldn't either as they'd want the sub as their man onsite. In that regard it's equally a sham so probably one of the better balanced clauses

If you're operating outside with the clientco (contract reviewed and passed by Qdos) now and they wish to keep you on post April outside, what clarification do you need from the agency?

I've been advised by the agency that the end client will be making an outside SDS determination.

However, I am not fully confident I can just rely on that alone? Do I simply just ask the agency for proof in writing from client before agreeing to stay on?

What do I need to do in addition to this to make it bullet proof? does the agency re-issue a new contract or do I keep the existing and if an outside SDS is made do Qdos need to revisit their decision re insurance?

do I need a written SDS from the client and what should it say exactly?

If an investigation ever arose and it was proved I was inside, would I only be responsible for the repayment of taxes for pre-April part of the engagement and post April it would be the client?

[JohntheBike]

It's a pity you don't know which bits have moved on and which bits have changed then. If you did your advice might be useful rather than an annoying piece of inaccurate tulip we have to spend time correcting.

well, I was only correcting NLUK's statement!

[eek]

I don't dispute that much has moved on, but much is also unchanged.

It's a pity you don't know which bits have moved on and which bits have changed then. If you did your advice might be useful rather than an annoying piece of inaccurate tulip we have to spend time correcting.

[JohntheBike]

That's NLUK. My problem with you is that the world has moved on over the past 18 years and sadly you still live there and believe what was true in 2002 is still true now.

I don't dispute that much has moved on, but much is also unchanged.

[eek]

from Mr Justice Elias's summing up -

" the Tribunal was fully entitled to conclude that the contractual arrangements were not a sham"

there was a contractual right of substitution.

NLUK claims that the actual working arrangements have always trumped the contractual provisions. I re-iterate that this was not the case in December 2002. The situation might have changed since,

That's NLUK. My problem with you is that the world has moved on over the past 18 years and sadly you still live there and believe what was true in 2002 is still true now.

[JohntheBike]

in two sentences you rubbish your own argument.......


*wibble*

from Mr Justice Elias's summing up -

" the Tribunal was fully entitled to conclude that the contractual arrangements were not a sham"

there was a contractual right of substitution.

NLUK claims that the actual working arrangements have always trumped the contractual provisions. I re-iterate that this was not the case in December 2002. The situation might have changed since,

[Lance]

*wibble* you will see that your statement isn't correct. The situation may have changed since, but it wasn't so in 2002. *wibble*

in two sentences you rubbish your own argument.......


*wibble*

[JohntheBike]

Not really. The upper contract is none of our business and is possible it won't carry all the information pertaining to our engagement anyway. It's mostly about the engagement with the agency. We do have to trust the agents that key details are in there like RoS but at the end of the day working practices on site trump the contract anyway. It's always been like this and we've managed.



You lodging a pointless appeal using a process that isn't even in place yet won't support anything at all. You should be able to see this. There are no facts at all that support your thinking and you are the only person, on here and in RL that thinks this which speaks volumes.

I don't need to disagree, there is no factual evidence that supports your actions. All I see is another contract being a bit of a tit for no apparent reason or gain which is going to do more damage for other contractors than good.

As I say, the appeals process won't kick in until after April when the legislation kicks in so you all you are doing is looking like a trouble maker.

working practices on site trump the contract anyway. It's always been like this

I would beg to disagree. If you took the time to read my EAT judgement, you will see that your statement isn't correct. The situation may have changed since, but it wasn't so in 2002.

[northernladuk]

It would be interesting to see the wording of the RoS clause in the upper contract between agency and client to see whether the client has the wiggle room to just ignore it.

No wiggle room, they just will. Most RoS are shams as has been called out in court before. It's very dangerous to push a client on it because a 'no' response could invalidate your insurance and IR35 status. That said most people with a hole in their bum will have a good idea if the client would or wouldn't go for it.