IR35 Ask an Expert - Ensuring Compliance

IR35 specialist Seb Maley answers your questions regarding the contracting profession and the potential pitfalls of the IR35 legislation.

Question: "I am a contractor, and I fear that I may be working within IR35. The company that I work for is quite dismissive of IR35 when I approach the subject, and encourages me to act like ‘one of the team’. What lengths can I go to in order to ensure that I am IR35 compliant?"

Answer: It’s always going to be very difficult if your client effectively sees you as an employee. This is one of the main points of IR35; if you are treated like an employee you should be taxed as one. HMRC will be quick to speak to your client and their evidence will take precedent over any positive clauses in your written contract.

Perhaps the first step would be to speak to your client. They have engaged you as an independent resource and are benefiting from the fact that they don’t have the obligations of an employer. They can’t have their cake and eat it: if they are taking contractors on they should be treating them as such.

It is in your client’s interest for you to be outside IR35. If you were found to be caught by the legislation, there would be nothing to stop you from taking the client to an employment tribunal to claim retrospective employment rights – holiday pay, sick pay etc.

Having a compliant written contract is obviously a basic requirement from an IR35 perspective, but this will be irrelevant if the above is not addressed first.

By:Troy Stevens

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