HMRC is still claiming that all contractors are subject to a Mutuality of Obligation (MOO). However, the organisation has still not revealed its reasoning behind this assertion. This is according to the minutes of the IR35 Forum from February 2018.
In response to a Freedom of Information request from ContractorCalculator, HMRC said that it would provide the arguments that support its position along with the publication of the IR35 Forum minutes.
However, instead of doing this, HMRC produced a technical paper for the Forum members in response to concerns that were raised over its Check Employment Status for Tax (CEST) tool and is now awaiting feedback, which must be submitted by the end of March. MOO was omitted from HMRC’s response.
HMRC has prompted a discussion of MOO but is unlikely to find common ground with the Forum. Freelancer and Contractor Services Association (FCSA) Chief Executive Julia Kermode said: “The FCSA does not agree with HMRC’s view that anyone using CEST will have already established MOO by virtue of a contract being in existence. We believe that this is a significant omission that ignores accepted case law, and until this position is revised, the tool is simply not fit for purpose.”
HMRC has said that both CEST and itself assume that MOO is present in every contractor engagement. However, contractor organisations have insisted that without a proper inspection of MOO, CEST does not align with the law and will give contractors incorrect decisions.