Status involving an agency

Status involving an agency

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HMRC state that workers of an agency are employed where as the agency and the workers believe that self employment is applicable, tax & NI being paid accordingly via SA. After protracted negotiations we may have to concede that they are employees. (We have referred to MAL Scaffolding case but because there is a written contract in place indicating that there is potential for control we believe that this makes the case for s/e hard to maintain.) However, there is a substitute clause in the contract which we believe that, in the context of ITEPA 2005, s.44, will enable the agency to avoid PAYE (but not NI)because the worker is NOT 'under an obligation PERSONALLY to provide services'. Readers views sought.
Also, in the light of the Demibourne case is there any advice that any body can offer regarding the set off of the s/e tax & NI aginst the employment NI (& tax if we are unsuccessful re the above substitute clause) whilst the position is currently being discussed between HMRC and the professional bodies. Do you think it is acceptable to expect HMRC to hold over collection until the discussions are concluded?
kevin mcdaid

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