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TaxRobin
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Category: Tax
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Experience:  International tax
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As a limited company contractor, I am currently having a contract

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As a limited company contractor, I am currently having a contract drawn up through an agency to work with their client. The problem is that they are not complying with the section which outlines the services to be provided for the assignment. Having included a generic statement which does not directly relate to the project I will be undertaking, on stressing the importance of complying with IR35, they have responded with sending a job description for the role with no reference to a project or programme name which the client has said is 'confidential.' Continual references are made in the description to a 'role' and to the individual consultant and the recruitment agent merely states that this supercedes the 'template' contract schedule of services. They are refusing to amend what is a long job description listing detailed duties and responsibilities. Am I right to insist this is changed and where would I stand in terms of IR35 compliance if this formed part of the contract? Both the client and agency are being incredibly unhelpful and pushing me to start without agreeing to make the necessary amendments. Thanks
Submitted: 2 years ago.
Category: Tax
Expert:  ben.jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me are you self employed

Customer:

Hi Ben,

Customer:

Yes, I am self-employed - Director of my own limited company

Customer:

The contract states the supplier as my limited company providing services to the client by way of a contractor/consultant

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this evening. There is no need to wait and you will receive an email when I have responded. Thank you

Customer:

Ok Ben, thanks - Nicole

Ben Jones :

Hi Nicole, thanks for your patience. I have considered this in more detail but as the main part relates to IR35 this is more appropriate fr out tax section so I will transfer your question there and a colleague will be in touch ASAP. Thank you and no need to rate this as I have not provided you with an answer.

Customer:

Hi Ben, thanks for your prompt response :). I just wanted to check however that in passing on my query to your tax colleague that I will not be charged a fee again?

Ben Jones :

Hi, no this will be the same original fee that you paid for this question.

Customer: replied 2 years ago.

Hi Ben,

No-one has got in touch with me still to answer my question from yesterday and I have already paid the fee. Can you advise who will get in touch or how I can ensure my question is dealt with promptly?

Thanks

Nicole

Expert:  TaxRobin replied 2 years ago.
Hello and thank you for allowing me to assist you.
So sorry your question was not addressed yet. When it was moved it was not placed in the open list.
You are correct to be concerned.
If you use an intermediary, but work for an end client on terms which would have made you an employee if the end client had engaged you directly, then IR35 will apply. If IR35 applies, it affects the amount of income tax under Pay As You Earn (PAYE) and NIC your intermediary will have to account for.
HMRC has a confidential IR35 helpline on 0300(###) ###-#### ***** helpline and review service are staffed by HMRC specialists in IR35. Both are independent of compliance teams – if you ask them about IR35, they
will not pass on what you tell them to other people in HMRC.
The specialists can review a contract for you if you want certainty about your position. Their review would be binding and could also advise of the position was questioned in the past.
I would suggest you let HMRC make the determination for you.
Customer: replied 2 years ago.

Hi TaxRobin,

Thanks for your response. So to clarify, are you saying that by including a detailed job description and a list of duties and responsibilities in the contract schedule, as the agency were only willing to do at most on behalf of the client, rather than a project name and list of deliverables or services that this would imply I was being treated as an employee and mean I would be caught by IR35? Even if the other terms stated that I could provide a substitute with similar skills etc?

This was my concern but the agency's excuse was that they have 4000 plus contractors and if they amended every individual contract to suit the particular assignment it would be far too time consuming!

Expert:  TaxRobin replied 2 years ago.
I am saying that by the wording thus far HMRC would be best to make the determination. I can not review the contract for you.
I am sure it would be time consuming for them but they are also not going to tell you if HMRC has ruled against them in the past on any one of those 4000.
Does the contract specify any of the below:
Do you work set hours, or a given number of hours a week or a month?
Do you have to do the work yourself rather than hire someone else to do the work for you? (this is only one remember not the only defining issue)
Can someone tell you at any time what to do, when to work or how to do the work?
Are you paid by the hour, week or month?
Can you get overtime pay?
Do you work at the premises of the person you work for, or at a place or places he or she decides?
Do you generally work for one client at a time, rather than having a number of contracts?
If it were me I would contact HMRC and let one of the specialist review the contract.
If the contract is too vague to let you know that none of the above apply then it is not enough.
Customer: replied 2 years ago.

To their credit, the terms of the contract do not state any of the above so there is no indication of control in that sense.

The pay is a fixed daily rate base on an 8 hour day but in the interview the client was expecting me to start and leave at specific times although not stated in my contract. I agree with you that I should contact HMRC although the client is now threatening to withdraw their offer if I delay any longer. So, hopefully a phone call for advice will not be a red flag to HMRC to then start an investigation into my business (not that I have anything to hide of course)?

Expert:  TaxRobin replied 2 years ago.
It will not be a red flag at all. They will not tell any other side of HMRC.
TaxRobin, Tax Consultant
Category: Tax
Satisfied Customers: 14479
Experience: International tax
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Customer: replied 2 years ago.

Great, thanks for your advice. I will contact them tomorrow.

Expert:  TaxRobin replied 2 years ago.
You are most welcome. I was happy to give you the information.

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