As part of the PCG's Case Law strategy they have identified another IR35 dispute that they believe is worth defending.
On 14th October another IR35 case is due to be heard before the Comissioners.
Roger Tilbury has provided his services via an agency to one client since incorporation in 1994 although these services have been provided at two separate sites. Roger initiated his case himself by asking for a Revenue view of his contract. They failed it.
The contract itself does indicate a greater right of control than would be ideal but it has a good substitution clause and good ‘in business on own account’ points. There is evidence to show a lack of mutuality of obligation as the contract was, at one point, terminated and Roger had to negotiate to have it re-instated
Roger's company has business factors such as health insurance to cover any loss of income through illness and there are also past occasions where late payment of invoices indicates genuine financial risk.
The end user has already been contacted and has confirmed the following:
1. There is a right of substitution.
2. Roger has had to swallow an enforced 20% rate cut.
3. There is some flexibility in working hours.
The Revenue seem to be digging their heels in over whether the substitution clause is a determinative factor and there is evidence that this argument is not isolated. This flies in the face of previous wisdom.
As ever CUK will be reporting the details as soon as they are available.
Oct 13, 2003
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