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‘Right’ to substitute didn’t mean he could, say judges • The Register

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An IT contractor has lost an appeal [PDF] which found he was an employee in the eyes of HMRC, with the judges agreeing he fell under the new IR35 off-payroll tax rules.

Robert Lee, working as a contractor under the company name Northern Light Solutions, had challenged an earlier First-tier Tribunal ruling which found his work for the Nationwide Building Society to be “employment” for tax purposes.

But his appeal in the Upper Tribunal on 6 and 7 May failed, partly because his legal team did not convince the judges that the clauses in his contract suggesting he and the agencies had the “right” to offer a substitute IT professional did in fact mean such a substitution could happen.

The ruling meant Lee would have to pay an additional £74,523 in income tax and National Insurance Contributions.

The tribunal found Lee, under the terms of the “hypothetical contract”, was paid a “day rate in the region of £450 and required to work a professional week, which for the Clarity Contracts is specified to be 7.5 hours a day.”

A contractor or agency’s right to substitute their work to another person of equivalent skill has been held as a key signal that the contractor is self-employed, rather than a “disguised employee”, and thus can be considered as falling outside of the IR35 rules.

Reforms to the IR35 off-payroll working rules, which critics argue classes contractors as paid employees without the employment benefits, were introduced in the private sector in April this year, after a year’s delay due to COVID-19. The new rules put certain liabilities on employers and make it more difficult for contractors to place themselves outside the revamped tax laws. Some employers – including BAE systems – have introduced blanket bans on contractors working outside IR35.

Lee worked for Nationwide through his Northern Light agency, which contracted with another agency, AxPO, which in turn contracted with the building society itself between 2012 and 2014.

What is IR35?

IR35 is a tax reform that was unveiled in 1999 by the UK tax authorities. The latest regulation change will force medium and large private sector businesses in the UK to set the tax status of their contractors and freelancers. Previously this was set by the contractors themselves.

Those workers found to be within the scope of the legislation – i.e. inside IR35 – will have to pay more tax than they might expect, despite not receiving benefits enjoyed by full-time employees, such as holiday or sick pay, pension, or parental leave.

The reforms are part of the government’s crackdown on so-called “disguised employment,” where workers behave as employees but avoid paying regular income tax and national income contributions by billing for their services through personal service companies (PSCs), which are taxed at lower corporate rates.

Critics say that being inside IR35 is essentially “no-rights employment,” meaning techies are paid and taxed similarly to regular employees but do not receive any of the security or protections that go along with permanent employment.

Contractors within IR35 can be hired and fired at will and without reason. The measure came into effect in the public sector in 2017. The British government hoped the reforms would recoup £440m by bringing 20,000 contractors in line.

The implementation in that area has been described as an “utter shambles.” HMRC reckons that only one in 10 contractors in the private sector who should be paying tax under the current rules are doing so correctly. It estimates the reforms will recoup £1.2bn a year by 2023.

Barrister Michael Collins, acting for Lee, had earlier argued that the “right of substitution meant that the hypothetical contracts could not be a contract of employment.”

Although the First-tier Tribunal had found that there was a right to provide a substitute in these contracts, this right was qualified. The tribunal found that Nationwide would have had to agree to a substitution, and that it was under “no obligation to accept such a replacement if in [its] reasonable opinion such replacement was not wholly suitable.”

The ruling said that “in practice it would be impractical for [Nationwide] to accept substitutes due to the necessary restrictions on access to [Nationwide’s] systems and restricted site access. Any substitute would need to go through vetting checks and an interview and get up to speed on the project.”

The Justices found a hypothetical contract – one that would have described the agreement between Lee and Nationwide – showed that his relationship with the building society was one of employment and the tribunal dismissed the appeal.

Lessons from the case include the need to effectively describe and communicate working practices at an early stage in the relationship, according to Dave Chaplin, CEO of ContractorCalculator, a firm advising contractors on their IR35 status.

Chaplin also claimed HMRC’s evidence from the notes of meetings, which underpinned several aspects of the ruling, appears to frame the facts relating to substitution in a manner that does not align with what really happens on the ground in IT projects. It was therefore important to keep a good, evidenced audit trail on projects to establish off-payroll working, he said.

“Lee’s contract did include a legitimate unfettered right of substitution, but it was never exercised, and the client never gave witness evidence to back it up as a genuine right. The judges chose to disregard those substitution clauses. Substitution is no silver bullet to definitively proving a worker is not employed unless it has taken place,” Chaplin said. ®

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Google, Apple and Microsoft report record-breaking profits | Google

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Google, Apple and Microsoft reported record-breaking quarterly sales and profits on Tuesday night as the firms continue to benefit from a pandemic that has created a “perfect positive storm” for big tech.

Apple made a $21.7bn (£15.6bn) profit for the three-month period that ended in June, its best fiscal third quarter in its 45-year history, boosted by strong sales of the iPhone 12 and growth in its services business.

Alphabet, Google’s parent company, reported second-quarter revenue of $61.8bn (£44.5bn), a 62% increase on the same period a year earlier, and a profit of over $18.5bn (£13.3bn), more than twice its profits for the same period last year. The company’s advertising revenues rose 69% from last year.

Microsoft, too, beat expectations, reporting revenues of over $46bn (£33bn) for the quarter – a rise of 21% compared to the same quarter last year.

The results come after Tesla reported a record profit on Monday in one of the busiest ever weeks for quarterly US earnings results. The big tech blowout earnings continue with Facebook on Wednesday and Amazon on Thursday.

Collectively, the market value of Google, Amazon, Apple, Microsoft and Facebook is now worth more than a third of the entire S&P 500 index of America’s 500 largest traded companies, as their share prices have soared during the pandemic.

Thomas Philippon, an economist and professor of finance at New York University, said big tech firms have been the biggest economic winners from the pandemic as global lockdowns have pushed more businesses and consumers to use their services.

“They were already on the rise and had been for the best part of a decade, and the pandemic was unique,” Philippon said. “For them it was a perfect positive storm.”

Analysts at Morgan Stanley reckon Alphabet is on course to achieve full-year net income of $65bn, a 59% increase on 2020. Its annual sales are, the bank reckons, on track for $243bn – a $60bn increase on last year.

Alphabet’s shares have risen by 75% in the past year to a record $2,670, but analysts predict they could climb higher still despite regulators around the world threatening to curb its dominance of the internet search market. Morgan Stanley said the stock could reach as high as $3,060, and even under a worse case scenario is unlikely to fall below $1,800.

Morgan Stanley analyst Brian Nowak said pandemic lockdowns had boosted Google as consumers spent more time online researching potential purchases. He said survey data showed that 54% of retailers ranked Google search products, including YouTube, as “their first place to go to research products online, up from 50% in past surveys”.

“Google websites growth is likely to rebound in ’21 as we believe there are several underappreciated products driven by mobile search, strong YouTube contribution, and continued innovation, such as Maps monetisation,” Nowak said in a note to clients.

Apple has been making so much money that over the past eight years it has bought back $421bn worth of shares, but it still has about $80bn of cash sitting on its balance sheet.

When Microsoft reported a 31% rise in profits at its last quarterly results, its chief executive, Satya Nadella, said it was “just the beginning” as the shift to digital technology was “accelerating” fast.

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The share price rise of the big tech firms has made billions for their super-rich founders and early investors. Forbes magazine calculated recently that there are now 365 billionaires who made their fortunes in technology, compared with 241 before the pandemic.

Collectively, the world’s tech billionaires hold personal fortunes of $2.5tn, up 80% on $1.4tn in March 2020. Amazon’s founder and chief executive, Jeff Bezos, remains the world’s richest person with an estimated $212bn fortune, and is closely followed in the league table of the wealthy by Tesla co-founder Elon Musk with $180bn, Microsoft co-founder Bill Gates with $151bn, and Facebook’s Mark Zuckerberg with about $138bn.

Zuckerberg believes the internet will take on an even bigger role in people’s day-to-day lives in the future, and instead of interacting with it via mobile phones people will be immersed via virtual reality headsets.

He said Facebook would transition from a social media platform to a “metaverse company”, where people can work, play and communicate in a virtual environment. Zuckerberg said it would be “an embodied internet where instead of just viewing content – you are in it”.

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Scam-baiting YouTube channel Tech Support Scams taken offline by tech support scam • The Register

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The Tech Support Scams YouTube channel has been erased from existence in a blaze of irony as host and creator Jim Browning fell victim to a tech support scam that convinced him to secure his account – by deleting it.

“So to prove that anyone can be scammed,” Browning announced via Twitter following the attack, “I was convinced to delete my YouTube channel because I was convinced I was talking [to YouTube] support. I never lost control of the channel, but the sneaky s**t managed to get me to delete the channel. Hope to recover soon.”

To fool Browning, the ruse must have been convincing: “I track down the people who scam others on the Internet,” he writes on his Patreon page. “This is usually those ‘tech support’ call frauds using phone calls or pop-ups. I explain what I do by guiding others in how to recognise a scam and, more importantly, how to turn the tables on scammers by tracking them down.”

Browning has made a name for himself with self-described “scam baiting” videos, in which he sets up honeypot systems and pretends to fall for scams in which supposed support staffers need remote access to fix a problem or remove a virus – in reality scouring the hard drive for sensitive files or planting malware of their own.

“I am hoping that YouTube Support can recover the situation by 29th July,” Browning wrote in a Patreon update, “and I can get the channel back, but they’ve not promised anything as yet. I just hope it is recoverable.”

Whether Browning is able to recover the account, and the 3.28 million subscribers he had gathered over his career as a scam-baiter, he’s hoping to turn his misfortune into another lesson. “I will make a video on how all of this went down,” he pledged, “but suffice to say, it was pretty convincing until the very end.”

Tech support scams have been going on for about as long as people have needed technical support, but a report published by Microsoft last month suggested the volume may be declining. The same report found that the 18-37 age group was the most likely to fall victim – and that 10 per cent of those surveyed had lost money to a scammer.

YouTube was approached for an explanation of how deleted accounts could be restored and what precautions it has in place to prevent its users – even those with considerable experience in the field of con-artistry – from falling victim to tech support scams, but was unable to provide comment in time for publication.

Browning did not respond to a request for comment. ®



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Orion the humpback whale ‘a dream sighting’ for marine observers

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A member of the Irish Whale and Dolphin Group spotted the humpback whale while out conducting a survey on marine life off the Donegal coast.

Marine mammal observer Dr Justin Judge described the moment he spotted a lone humpback whale off the coast of Donegal as “a dream sighting.”

Judge spotted the whale at 9.30 on the morning of 9 July while representing the Irish Whale and Dolphin Group (IWDG) on board the Marine Institute’s RV Celtic Explorer.

The group of researchers and observers was out on the waters around 60 kilometres north-northwest of Malin Head when they saw the whale. They were carrying out the annual Western European Shelf Pelagic Acoustic (WESPAS) survey.

“This is a dream sighting for a marine mammal observer,” Judge said. He explained that the creature would be nicknamed Orion – which had a personal meaning for Judge and his family.

“The individual humpback whale ‘Orion’ has been named after the Greek mythological hunter, since the whale was moving with the fish stocks for food. It is also my son’s middle name so fitting on both fronts,” Judge said.

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He added that the team had also observed “a lot of feeding action from a multitude of cetacean species that day, including bottlenose, common, Risso’s and white-sided dolphins, grey seals and minke whales.”

To date, the IWDG has documented 112 individual humpback whales in Irish waters since 1999, many of which are recorded year after year. Humpback whales are frequent visitors to Irish waters as they are an ideal feeding area for humpback whales stopping off in the area on their migration across the Atlantic.

The beasts are identifiable thanks to the distinctive pattern on the underside, which is unique to every individual whale.

“Observing any apex predator in its natural environment is exciting but a new humpback whale for Irish waters, this is special,” WESPAS survey scientist, Ciaran O’Donnell of the Marine Institute said.

The Marine Institute’s WESPAS survey is carried out annually, and surveys shelf seas from France northwards to Scotland, and west of Ireland. WESPAS is the largest single vessel survey of its kind in the Northeast Atlantic, covering upwards of 60,000 nautical miles every summer. The survey is funded through the European Maritime Fisheries and Aquaculture Fund under the Data Collection Programme which is run by the Marine Institute.

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