Tax Director of WTT Consulting Ltd.
Specialist tax enquiry firm, with a strong presence in the contractor market
I have no opinion of you, good, bad or indifferent.
I would like to see all parties in these transactions abandon the thinking of the past, examine the situation today objectively and make plans and preparations based on realistic principles.
In a Utopian world employment and tax law would be aligned. Here in the real world it is not and presently the Gov't has no inclination to do that and the Courts cannot wear Parliament's clothing and make it so. Any ET making a decision binding on FTT or vice versa would be found to be acting outside its jurisdiction. As a result even if the Judges were to make simple and obvious connections, there is no validity to them.
Don'y fool yourself that being taxed as an employee means you are one.
I've wasted too much time here today and am tired or repeating myself.
I have said exactly that in this website and others and have attracted the approbation of my professional colleagues and been "warned" by a high ranking professional body that I need to have the evidence of negligent advice before continuing my campaign. I have not stopped saying that my colleagues have let down their clients and themselves.
I have every reason to believe that many naive people were pushed and cajoled into schemes and that the present proposals are a tax planners paradise and that we will see a repeat of the mess of the early 2000,s.
My role now, via my firm, is to protect as many people as possible from an enquiry in the future.
Unfortunately we are already seeing offers made to clients from people who can be described only as dishonest, saying that they can arrange a contract to be outside IR35 (regardless of the role) and that a fall back position if they are wrong is that the individual will qualify for all sorts of employee benefits.
As I said - dishonest.
Given the irrelevancy of ET rules in a FTT and vice versa, this will never happen.
As I said we had this debate elsewhere but that led to nothing in face of a stubborn refusal to see that the world had moved on and that cases from years ago arising from very specific circumstances have been rendered irrelevant in the face of new legislation and policy.
Here we are trying to address the new reality. That si that the Gov't has decided that there is no place for a common definition of employment between tax and employment law. Trying to argue that there should be or that in the absence of any attempt to do that, your case is proven is akin to saying that "unless something is expressly prohibited, it is allowed". That is trite and as untrue as your statement.
The FTT has a certain path it follows in IR35 status enquiries. Read the cases. It will look at the role, the way the role is performed, the supervision, direction and control exercised. Issues such as whether permission has to be sought for absence, the use of employer supplied kit, the "fit" of a role within a format are all also included but carry much less weight. The FTT does not consider anything that might be a right arising from an employment (entitlement to holiday pay for example) because this is never part of the equation. They can't consider a nothing. Their job is to apply tax law to a given set of circumstances.
Far from a myth we have new reality. The legends of the past can be left undisturbed as not even their ghosts have any impact in a modern case.
As to the rather unworthy implication that I am sympathetic to HMRC, my record speaks for itself. I have a degree of respect for HMRC front line officers doing a job that is not easy. It is not easy because those making policy are truely bought in to the "maximise revenue" agrument. they are prepared to almost literally throw people under the bus so ling as the target is reached and they get their gong.
Happy to show you several hundred sets of materials in which the myth of using a PSC to protect against IR35 is stated as why you need to.
Have not seen one piece of marketing material that says you have to use a PSC to protecting the client from your claiming employment rights. If you have that, happy to do a swap.
Ah, just worked out who you are.
We've had this debate elsewhere.
In that place I acknowledged that in a very specific set of circumstances - yours in fact from a long time ago and which are not really current - the link between tax and employment tribunals and the potential for one to influence another was a small element in the situation.
The Good Work report and the response make it clear that Government policy is NOT to have a link and therefore Judges in both will be mindful that whilst they can interpret law (and perhaps even make law in some cases), they cannot override Give't policy.
Being taxed at the same rate as an employee does not give you employment rights and going to an ET and claiming otherwise would be possible but unlikely to get you far.
I'm not doubting the need to travel TO the place of work, but obtaining a contract and then living near the place of work is different.
Look at the tax case involving Tim Healy.
Self employed actor, living in Newcastle, gets a role in London, rents a place for the duration - relief refused.
As I said not enough space here for a debate on this and anyway - off topic.
Completely agree that anybody can go to an employment tribunal and claim employment benefits.
What I said was that your tax status DOES NOT determine whether you will be successful in the claim.
There is no read across.
You are correct that the use of a limited company intermediary became the default for the end client but not for tax reasons. This intermediary gave the end client comfort on various employment law matters.
The agency went along with it because otherwise the end client would not use them.
Simple economic imperative.
There is not enough space here to discuss expenses, especially home to work. Where is your work? Are you travelling TO work or FOR work? Why is your job not one that starts WHEN you arrive at the office. Why should you get relief for a cost that an employee is unable to claim? Etc, etc.
"Evading tax" is a criminal offence. I think nobody here is suggesting that engager or contractor are colluding for criminal intent?
I think you may mean that a contract found to be inside IR35 post April whereas the same post, same obligations, same conditions, etc pre April 2020 were outside IR35, may mean HMRC are interested in investigating?
If so, I agree.
HMRC has said that they will not run targetted campaigns in such circumstances. I asked a recent audience of some 400 contractors who trusted that statement from HMRC.
Not one hand went up.
Why would a contractor enter a fixed term employment contract?
Where is the advantage?
He/she has a short term job and full PAYE deductions. No job security and less money.