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Markel Tax

04 Mar 2019

No equipment no self-employment?

My client’s subcontractors only work for him, they all work full time, and none of them provide any of their own equipment. Does that mean that he can’t pay them under the Construction Industry Scheme?

No, not necessarily. While the provision of equipment and having multiple clients can add weight to the argument that a subcontractor is operating in business on their own account, these are only secondary factors. 

What is most important to consider is whether your client requires the subcontractors to provide the services personally; whether he retains a right of control over how the subcontractors perform the services; and whether there is mutuality of obligations between your client and the subcontractors. 

Where one of these things is missing then the law says that the engagement cannot be one of employment and is therefore reflective of a self-employed relationship. The more that can be demonstrated the stronger the relationship i.e. if the subcontractors are free from control, have the right to utilise a substitute and have no obligation to accept or undertake services then he will be in the strongest position.

We would always recommend these are confirmed in a robustly worded contract agreed by both parties, to provide the best possible defence in the event that HMRC challenge the status of the subcontractors (as a correctly written contract can be crucial to any successful defence). 

Here to help
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Tagged IR35
Next article in series

20 Feb 2019

VAT – the Flat Rate Scheme and distance sales