A Contract For Services?

[Bel]

Originally Posted by curleyted

Do you go into the courtroom, grab the judge and go "DON'T **** WITH ME, I WORK FOR QDOS!"

Ruffle 'em up, like.

LOL! I doubt it.

Qdos have a very good track record of stopping investigations in their tracks before they get that far.

[CrazyMoose]

Originally Posted by Malvolio

It's simple, really There are two flavours only:

A Contract of Service - you are there to provide a service personally to your hirer. The phrase comes from the original concept of Master/Servant.

A Contract for Services - you (or your representative) are there to deliver one or more defined services for a set fee.

Guess which one is outside IR35.

Top notch first post Malvolio, welcome to the forum

[Bel]

Originally Posted by Malvolio

It's simple, really There are two flavours only:

Guess which one is outside IR35.

I would say likely IR35 compliant, not IR35 compliant, depending on whether the working practices match both lower and upper contracts for the duration of the engagement.

I try and deter readers from viewing contracts as 'outside IR35.' It's the engagement that could be likely IR35 compliant, not just the terms.

[Seb Maley]

Originally Posted by curleyted

Do you go into the courtroom, grab the judge and go "DON'T **** WITH ME, I WORK FOR QDOS!"

Ruffle 'em up, like.

Yes. Sort of.

[curleyted]

Originally Posted by Seb Maley

Yes. Sort of.

Do you grab his head and rub your knuckles roughly across his scalp? They (and the Revenue) hate that.

[Malvolio]

Originally Posted by Bel

I would say likely IR35 compliant, not IR35 compliant, depending on whether the working practices match both lower and upper contracts for the duration of the engagement.

I try and deter readers from viewing contracts as 'outside IR35.' It's the engagement that could be likely IR35 compliant, not just the terms.

My point is that too many freelancers do not understand the difference. Despite the similarity in the phrasing, the gap between them is highly significant.

Also, while I agree that you have to have a contract that reflects the on-the-ground reality, you are still constrained by a contract you will never see and over which you have no control, and it's usually that one that blows an IR35 defence. Furthermore I have seen too many contracts where the freelancer is told things by the agency that are impossible to reconcile with the contract they have with the end client. One day an agency will get sued for misrepresentation, but until then the practice will continue.

So at the very least, you have to go into the arrangement with your eyes open, and that starts from understanding the basis of being outside IR35. Those three tests still apply.

[Bel]

Originally Posted by Malvolio

My point is that too many freelancers do not understand the difference. Despite the similarity in the phrasing, the gap between them is highly significant.

Also, while I agree that you have to have a contract that reflects the on-the-ground reality, you are still constrained by a contract you will never see and over which you have no control, and it's usually that one that blows an IR35 defence. Furthermore I have seen too many contracts where the freelancer is told things by the agency that are impossible to reconcile with the contract they have with the end client. One day an agency will get sued for misrepresentation, but until then the practice will continue.

So at the very least, you have to go into the arrangement with your eyes open, and that starts from understanding the basis of being outside IR35. Those three tests still apply.

That's right, some don't know the difference between a contract for services and contract of service. That's why I explained the difference in 'A Contract For Services?'

I agree that there are factors that contractors have little control over - witness testimonials, no sight of the upper contract. But these obstacles can be overcome, if the foundations are in place and you're sure of the type of work you're performing. See my article 'IR35 and Teamworking.'

I got the impression that you implied the opposite in your first post: that 'a contract for services' was 'outside IR35' hence my inclusion of the word 'likely...' in my follow up response. In all of my articles I have clearly stated that 'the whole picture' matters, not a tickbox approach.

Sadly, I detect a hint of pessimism in your latest answer, which I think is unwarranted. It's as if you're saying that it's not worth getting a contract reviewed because of uncontrollable factors.

That's not a message I want to convey. Many contractors work compliantly. If that were not the case contract reviewers wouldn't be in business - despite the high profile losses, such as Dragonfly.

[Malvolio]

Originally Posted by Bel

That's right, some don't know the difference between a contract for services and contract of service. That's why I explained the difference in 'A Contract For Services?'

I agree that there are factors that contractors have little control over - witness testimonials, no sight of the upper contract. But these obstacles can be overcome, if the foundations are in place and you're sure of the type of work you're performing. See my article 'IR35 and Teamworking.'

I got the impression that you implied the opposite in your first post: that 'a contract for services' was 'outside IR35' hence my inclusion of the word 'likely...' in my follow up response. In all of my articles I have clearly stated that 'the whole picture' matters, not a tickbox approach.

Sadly, I detect a hint of pessimism in your latest answer, which I think is unwarranted. It's as if you're saying that it's not worth getting a contract reviewed because of uncontrollable factors.

That's not a message I want to convey. Many contractors work compliantly. If that were not the case contract reviewers wouldn't be in business - despite the high profile losses, such as Dragonfly.

Actually I don't see Dragonfly as a disaster. The contract was modified to try to move it outside IR35 with no change in the underlying arrangements, so it was always going to be open to challenge. There were also some weird decisions made by the commissioner about what constitutes control: in fact. tthat's a lot of the problem, there is too much interpretation allowed when deciding cases.

I'm not saying you shouldn't get your contracts reviewed (or at least learn enough about IR35 to be able to make your own informed judgement), but equally people shouldn't rely on the contract as being definitive.

What we really need is for IR35 to be dumped wholesale, and for there to be a clear definition of "Control" as a differentiator between employee and freelancer. One day, perhaps...

[Bel]

Originally Posted by Malvolio

What we really need is for IR35 to be dumped wholesale, and for there to be a clear definition of "Control" as a differentiator between employee and freelancer. One day, perhaps...

I agree that IR35 repeal would be the wisest move, but I'm not convinced that it will be. For some, the issue of 'control' would be irrelevant for some contractors, if it was repealed. Although not for those that still want to work autonomously in an engagement, whether IR35 exists or not.

I wouldn't like to see a third way alternative, as some suggest.

Here's to hoping...

[CrazyMoose]

Originally Posted by Malvolio

I'm not saying you shouldn't get your contracts reviewed (or at least learn enough about IR35 to be able to make your own informed judgement), but equally people shouldn't rely on the contract as being definitive

I agree. In my opinion, all contractors that are operating outside IR35 have a responsibility to educate themselves enough to negotiate anti-IR35 clauses in their contracts. Provided you have a decent relationship with your agency / client, these 'IR35-proof' contracts are not that difficult to agree. They must of course reflect the true working relationship between you and clientco as anything else could be exposed as a sham by Hector…