And as a tax advisor, your definition of "disguised employee" is...?
You were arguing tax avoidance isn't an issue. But that's exactly what IR35 was originally enacted to target. My definition (which, obviously is the same as everyone elses in this country as it relies on case law) is irrelevant to the position that IR35 has been enacted to target abusive arrangements.
For the record, my personal view is that there needs to be a statutory definition.
You'll also be familiar with the legal battle recently between a "disguised employee" and HMRC whereby the PSC used the CEST tool to determine that they were outside IR35. HMRC told the courts that CEST output was not evidence and could not be submitted to a court because it was "unreliable".
Not only am I familiar with the court case, I have read it and know your charecterisation of it is flawed. The actual position that HMRC took is that whether or not someone falls within the rules is
fact specific and that in this case HMRC
believed that the taxpayer had given
incorrect information to the CEST tool. As such any results were unreliable as the CEST tool cannot look into the true facts and anyone lying (or mistaken) when completing it cannot expect to rely on the end result. I believe the FTT agreed with the taxpayer (you haven't specified which case you're referring to, there have been several over the past 6 or so months) but that agreement was because they agreed with the taxpayer on the relevant facts, including areas that HMRC alleged the taxpayer had incorrectly classified within the tool.
This is my entire issue with your posts. I recognise this is an emotive subject, and generally I steer clear of being involved in emotive postings about tax as they are cathartic for the poster. But there comes a time when emotional posts are in danger of leading other users to incorrect positions. There are numerous times where taxpayers take, and spend money, on cases to the FTT where professionally it is clear they have no hope of success, but the emotive position is easy to see. Sometimes it is necessary for a neutral person to step in and say hold on, this may suck but unfortunately the position is XYZ.
Their attempts to extort are nothing short of criminal, and if you can honestly say that my characterisation of them is flawed and unfair, then the blinkers must have been superglued to your eyes.
And this is when HMRC will stop taking you seriously. Because it's blatantly not criminal and to suggest otherwise is ridiculous.
If the law doesn't work in their favour, they just find another way around it. ...
Another is retrospective legislation. That is simply not legal, otherwise it would have to apply to any and all judicial cases. You cannot bring in a law, and then apply that law to a period of time before the law became applicable.
Retrospective legislation isn't "not legal". It is uncommon, but it is certainly legal to do so. Whether it is proportionate to do so is arguable, and whether it is necessary to do so is political. But your argument is flawed from the starting position.
I still also firmly stand behind my assessment of HMRC as a workforce, they are nothing more than junior Civil Servants. The chain or promotion and post roles within the CS are beyond comprehension. You can be an IT analyst one week, but in for a promotion and be a PMO the next followed quickly by a career change to DoD, Home Office or HMRC. The only route promotion questions are based around aptitude and key phrases (which the interview panel look for).
I, and I suspect many others, find it slightly unnerving that John from the PMO team of the DoE is now sitting and a post 7 within HMRC, having no tax or accountancy experience at all.
As I said earlier, when IR35 conversations became mainstream, a senior civil servant who saw the potential for the damage done by a reduction in workforce, asked who IR35 was and how could he contact them to discuss it...
This falls into the category of posts that I wouldn't respond to.
