Temporary working and IR35 (april 2017)

[intrgued]

Temporary working opportunities for public authorities are covered by the IR35 rules which came into effect on 6 April 2017. Since then when making a temporary role available the end employer (a public authority, health trust, etc.) has to assess and define if the role is either IR35 in scope (where tax and national insurance contributions are deducted at source) or IR35 out-scope (where no deductions are taken at source). The IR35 rules specify that an end employer must state the IR35 assessment before a contract is entered into or started. What is the legal situation for a public authority to alter the IR35 category after a contract has commenced, and without any prior notification, part way through the contract start to deduct contributions and seek to claw back such from payments already made ?
What is the legal situation in addition when such retrospective claw back is made to an earlier separate and completed / finished contract of temporary employment ?

[ULA]

I am really sorry but I have no expertise on IR35. However I do know that you can contact the IR35 Helpline. You don’t need to reveal your identity to use the helpline and any information you do give will not be shared with HMRC compliance teams. The number is 0300 123 2326.

Hope they can help you.

[intrgued]

Thank you ULA, I rand the number indicated and spoke to a advisor at HMRC. He indicated that the council are able to review the status of any job subject to IR35 but if they change the assessment from being out-scope to becoming in-scope they can take tax and NI contributions from the time that they came to the that reassessment, but are not enabled to either backdate the payment contributions or take contributions from owed invoices for invoices that they have already met. This has given me a more positive feeling that I am in the right and that the council are in the wrong on the actions that they took.

[ULA]

Hi Intrigued thank you so much for coming back with an update and I am glad that you managed to speak to an advisor via the number I gave who could give you some advice.

I would suggest that with this information you should write to the council and explain that you have taken advice and provide then with what you have been told. Ask them for their comment in particular regard as to why they believe that they can claw-back tax and NI deductions from prior to their assessment date because based on what you have been told they are not entitled to do so.

Then see what they come back with but hopefully it will be just a sorry we got it wrong!