Services
The issue
The issue here is whether this the hypothetical contract here would be
·
a contract for services, or of service, or
·
some other type of contract
Legal issues, and the Revenue Guidelines
The Revenue guidelines appear silent on this issue, and do not appear to
address the question of the dividing line between a contract of or for services,
and 'some other type of contract'.
A contract for the provision of a specific deliverable may arguably not be
either a contract of service, or a contract for services, but instead a contract
for something else - a contract to produce a thing for a price.
Logic suggests this may apply even if the price is not fixed.
A contract to fill a post, or position, as opposed to for the provision of
services (even if loosely defined) is likely to be a contract of service.
It was made clear in
Synaptek that this is the case, even where there is clear evidence that the
individual was in business on his own account:
20. The fact that Synaptek (and notionally Mr
Stutchbury) was in business on its (notionally his) own account is no doubt an
important contextual circumstance to be taken into account in determining
whether the particular notional contact under which Mr Stutchbury was engaged by
the client was one for services or of service. But it is no more than that. The
weight to be given to it was, in my judgment, a matter for the General
Commissioners. That they took it into account is clear from their reference to
the point in paragraphs 5.1 and 5.2 of the stated case.
Comment
what would the position be likely to be in relation to this factor for a
hypothetical employee?
·
logic and experience suggests that a
hypothetical employee would probably be engaged for an indefinite period, in a
specific and defined position, and against that background may be deployed on
such services as here, possibly temporarily, as part of his general duties.
When these services were completed, or when the demands of the services were
light, or when other demands were heavy, (s)he would generally expect to be
redeployed elsewhere.
what would the position be likely to be in relation to this factor for a
hypothetical obviously self-employed person or consultancy (eg Andersens, or by
PWC, or EDI?)
·
logic and experience suggests that a
hypothetical obviously self-employed person or consultancy would probably be
engaged to provide either specified and defined services for a fixed period, or
to provide specified and defined deliverables. When the fixed period ended, or
when the deliverables were in fact delivered, the contract itself would
generally come to an end. If the contract was for services to be provided over
any significant length or time, one might well expect it to be capable of being
ended earlier by notice, especially if it were not for defined deliverables, to
allow a degree of flexibility. When the demands of the services were light, (s)he
would not generally expect to be redeployed elsewhere. When other demands were
heavy, one would not generally expect him / her to be required to assist with
such other demands.
do the facts here actually provide a helpful pointer towards either view?
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