This week's opinion: 3 October 2019

You have only to look at the reaction to the Supreme Court’s ruling in the prorogation case to see that there can be different legal interpretations of the same facts. We may never have to deal with issues as controversial as Brexit, but the legal problems we do have to grapple with can have serious consequences for clients. What happens when our interpretation is not upheld by the courts? Have we failed in our duty? 

These thoughts are prompted by the latest IR35 case (Paya Ltd and others (TC7377)). There will be plenty of time to consider the implications for service companies but what interests me now concerns advisers. HMRC raised determinations for out-of-date years on the basis there had been a lack of reasonable care, not by the presenters but by the advisers. Given the problems with determining IR35 status – demonstrated here by the fact that the tribunal judges disagreed – it would have been worrying had HMRC’s view prevailed. I urge everybody to read paragraphs 677 onwards but in particular to note the key finding: ‘It cannot be the case that a person is necessarily careless because he took a view that is later found to be incorrect, in particular, where determining whether the relevant legislation applies depends on making a difficult value judgment.’ Perhaps we should all start wearing t-shirts with this emblazoned on the front.