IR35: General - Question 14

What is the correct procedure for obtaining an opinion from HMRC?

From 1 December 2002, where a contract is submitted to HMRC for an opinion as to whether or not an engagement is within or outside the intermediaries legislation, the IR35 Unit rather than the local office will give that opinion. This will help to ensure greater consistency and should improve the turnaround time.

If you want HMRC to give an opinion then we will need your full co-operation to establish the facts relating to the engagement and will need to see copies of any contracts involved in the relationship. You should send us copies of these contracts when asking for an opinion together with any other information that you consider might be relevant. For example:

• any other documentation relating to the working terms and conditions
• written statements from the worker and the client as to their views of the working terms and conditions with particular emphasis on what happens in practice

• details of how the engagement was obtained and the recruitment procedure together with a copy of any adverts for the work in question;
• a description of the nature of the services to be performed together with any job or work specifications for the contract;
• copies of any tenders made by the intermediary;
• details of any additional contractual terms not included within the written contracts, whether oral, written or implied;
• details of how and who allocates the work and the role the worker plays in the client's organisation i.e. does he/she work alone or as part of a team.

• other relevant information from the worker/intermediary. This might include for example the number of engagements held during the year; the number of different engagers; and expenditure on equipment etc necessary for the performance of the contract.

You should send the contracts and other information to:

IR35 Customer Service Unit
HMRC
Ground Floor North
Princess House
Cliftonville Road
Northampton
NN1 5AE
e-mail: IR35 Unit
Tel No: 0845 303 3535 (Opening hours 8.30am to 4.30pm, Monday to Friday. Closed weekends and bank holidays)
Fax No: 0845 302 3535

You should also provide the worker's National Insurance number, the company's HMRC reference number and the company's postcode.

Where it is not possible to obtain a copy of a written contract, for example a contract between an agency and the client, it is essential that there is some evidence from the client about the terms and conditions of work.

In some cases there may not be sufficient information to give an opinion and in others the opinion may have to be heavily qualified. But where an opinion is given, you will be able to rely on it so long as all the relevant information has been supplied and the terms of the engagement do not change part way through.

What happens if I disagree with the Revenue's opinion?

Where an opinion from the IR35 Unit is disputed and the dispute cannot be resolved quickly, the papers will be passed to the local IR35 Inspector to reconsider the opinion given and, where necessary, to seek additional evidence from the worker and/or the client. If there is sufficient evidence to support an opinion and you disagree with that opinion, you can ask for a formal section 8 NICs decision against which you have a right of appeal.

When will the Revenue give an opinion?

The Revenue will give an opinion to an intermediary on contracts if the request is made prior to the P35 filing date i.e. 19 May in the following tax year. Where a worker requests an opinion, the Revenue will give an opinion if the request is made prior to 31 January in the following tax year.

Further guidance on the Revenue's views on employment status and the intermediaries legislation can be found in the February 2000 Tax Bulletin (Opens new window) and in the Employment Status Manual