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Markel Tax

22 Mar 2018

Challenging an IR35 public sector ‘caught’ decision

Is there any formal appeal process for a Personal Service Company client who has undertaken a public sector contract deemed caught by the IR35 legislation under the off payroll working rules?

There is no formal right of appeal against a decision made by a public sector end client as to whether or not the parameters of the IR35 legislation apply. 
If the Personal Service Company disagrees with the decision that the contract is caught by the Intermediaries Legislation (IR35), the legislation at Section 61T Chapter 10 ITEPA 2003, Regulation 20 The Social Security (Miscellaneous Amendments No.2) Regulations 2017 does provide for the following: 
The end client must, upon a written request by the person who the end client is directly contracted with (who may well be an agency), provide that person with a written response to any questions raised by the person about the end client’s reasons for reaching the conclusion in the information. That written response must be provided before the end of 31 days, beginning with the day the request for it is received by the client.
We believe it is important that the decision be clarified as, beyond this power, the only other option for the director deemed caught by the IR35 legislation is to consider making a repayment claim as part of the annual self-assessment return filed after the end of the tax year. The concern is that by taking this action HMRC may well have no option but to open a S9A enquiry in order to undertake a full review of the circumstances. In this respect, HMRC has said “if HMRC rejects that (repayment) claim and the parties continue to disagree the matter can be resolved with a formal determination/decision and appeal to the Tribunal.” 

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