ESM8445 | Opinions on contracts: general

An essential condition that has to be satisfied before the legislation will apply is that the worker’s services are provided in circumstances that would have been treated as employment if the worker had contracted directly with the client. Where a worker is in doubt about whether an engagement would have been employment or self- employment, then he or she may ask for an opinion from HM Revenue & Customs. The opinion is given in accordance with the overall commitment under Code of Practice 10. It does not of itself create a decision subject to appeal. Taxpayers are entitled to rely on our opinion in completing tax returns (including the intermediary’s P35 and related documentation). They are also at liberty to adopt their own alternative view in completing those returns.

The purpose of giving opinions is to enable customers to comply with their obligation to make correct returns at the right time.

It follows that if a return has already been made or the return is already late an opinion cannot be given as part of customer service activity. Consequently, where a representative of an intermediary asks for an opinion on a particular engagement for a particular tax year, an opinion can be given on a customer service basis up to the time the P35 is due (19 May in the following tax year). Similarly, where a worker asks for an opinion, the cut-off date is 31 January (the SA return filing date) in the following tax year.

There is no obligation to provide a customer service opinion on requests made after those dates. However, see ESM8520 in relation to requests for formal section 8 NICs Decisions.