Circling the Wagons

Tomorrow morning (24th January), the opening Statement of Mr. Niall Cody, Revenue Chairman, to the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach states:

“Bogus Self-Employment and the Impact on Tax Revenue
Moving now to the final topic, the Committee is aware that on 31 January last year,
the Government published a report entitled “The use of intermediary-type structures
and self-employment arrangements: Implications for Social Insurance and Tax
Revenues”. The Report was prepared by a working group comprising the
Department of Employment Affairs and Social Protection (DEASP) and the
Department of Finance, with technical support from Revenue. It found that on
aggregate, there is no evidence of any significant change in the level of self-
employment in the economy; and that there is limited evidence of bogus self-
employment (disguised employment)”

Reality: There is ample evidence available to Revenue to show that bogus self employment (white collar fraud) costs the exchequer far more than claimant fraud (blue collar fraud):

“In 2016, a major inter-departmental report was completed with a special subsection on construction, and in 2016 nearly 18,000 construction investigations yielded almost €58m in back-tax, interest and penalties” (Irish Independent April 2018).

That’s a return to the exchequer of over €3,000 for every individual bogus self employment case examined.

In comparison, Social welfare claimant fraud totaled €41 million in 2016. The Department of Social Protection conducted more than 5 million reviews between 2012 and 2016 and only managed to yield €41 million in 2016.

For far less money, time consuming reviews and investigations, €58 million was recovered through bogus self-employment investigations. Revenue failed to disclose what the non-compliance rate was for these 18,000 individual bogus self employment investigations, but with returns in excess of €3,000 per investigation, there is no justifiable reason for Revenue and the Department of Social Protection to continue to ignore bogus self employment. Why are they circling the wagons?

Martin

 

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Gerard Cunningham #TheFacts Ep.134

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We like to give it socks in the tortoise shack, so it was very welcome that our guest, news reporter and self-described former productive member of society, Gerard Cunningham came in and gave us a different perspective.

Gerard gives us his insights into why Tribunals, for all their faults, might be the best worst option we have. He also talks about the white-noise that social media can be and why so much of the blame laid at the door of mainstream media is misplaced.

I really enjoyed this spiky conversation with a man who doesn’t suffer fools. Hence the bruises!

D-Day for Van, Motorcycle & Pushbike Couriers

Since the 1st of January 2019, Van, Motorcycle & Pushbike Couriers will no longer operate under the 21 year old special tax arrangement between Revenue/Social Welfare and Courier Company owners. Under the previous system, tax and PRSI were deducted at source from couriers, this has ceased since January 1st. Revenue is now advising that couriers self-declare as self-employed and pay tax and PRSI accordingly.

A note of caution: Although eventually forced to abandon the Special Tax Arrangement, Revenue state:

“Revenue are of the view that, in general, motor cycle and bicycle couriers are engaged under a contract for service i.e. they are self-employed individuals”

Fact: The Scope Section, The Chief State Solicitor’s Office, The Employment Appeals Tribunal, and more recently the Tax Appeals Commission have determined that couriers are not self-employed..

My advice for couriers?     DON’T DECLARE AS SELF EMPLOYED

Instead, write to:

Scope Section, Department of Employment Affairs and Social Protection
Gandon House
Amiens Street
Dublin 1

or Email scope@welfare.ie and request an ‘Insurability of Employment’ determination. The vast majority of you are not self-employed, never have been, and this is why:

ILLEGAL STATE AID –

On the 3rd of April 1997, the Office of the Chief Inspector of Taxes wrote to a chartered accountancy firm, which represented Courier Firms at: Quote “Discussions”.

The subject of the discussions as described by the Office of The Chief Inspector of Taxes

Fact: The Courier Industry was operating almost entirely in the black economy.

Fact: Revenue were fully aware that the Courier Industry was operating as such.

Fact: Courier Firms were non-compliant with their tax obligations.

On the 3rd of March 1997, a meeting was held between Courier Company representatives and representatives of the Revenue Commissioners in the Burlington Hotel. A Special Tax Arrangement was agreed between the parties. The non-compliance of the entire Courier Industry for at least 5 years was wiped from existence. With effect from the 6th of April 1997, the Revenue Commissioners deducted tax and PRSI, at source, weekly, from individual Couriers pay cheques.

Revenue themselves refer to it as a PAYE operation. PRSI was deducted at S Class, the self-employed PRSI class.

The Revenue Commissioners are also very clear as to why they were going to classify all couriers as self-employed:

“In the interest of uniformity”

Fact: All couriers were classified by the Revenue Commissioners ‘In the interest of uniformity’.

3 years later, a courier was determined by the Scope Section of the Department of Social Protection to be an employee and not self employed. The individual courier was labeled as self employed under the special tax agreement. This decision by Scope was appealed to the SWAO. At the Appeal hearing, the Minister’s Senior Counsel submitted a lengthy legal submission concluding –

“It is contended that the Appeals Officer is bound to hold that the claimant is employed under a contract of service” (employee)

Despite no new evidence, no new point of fact or law to warrant an appeal in the first instance, the Appeals Officer overturned the Scope Decision.

While this Appeal was waiting for this hearing in the Social Welfare Appeals Office, the Chairman of the Public Accounts Commission began inquiries into the employment status of couriers. To this end, he wrote to both the Chairman of the Revenue Commissioners and the Secretary General of the Department of Social Welfare. He asked why were all couriers being treated as self employed. The Chairman of the Revenue Commissioners replied –

“As regards taxation, the issue of couriers an particularly motorcycle couriers was the subject of protracted discussions between Revenue and courier industry representatives”

The Revenue Chairman enclosed copies of what he terms “the arrangement reached for tax purposes”.

It is in these arrangements that it states that a Social Welfare Appeals case of 1995 was non-binding and that the classification of all couriers as self-employed by the Revenue Commissioners was “in the interest of uniformity”.

The Secretary General of the Department of Social Welfare also replied to the Chairman of the Public Accounts Committee. In his letter he stated:

“In order to resolve the matter, a number of representative ‘Test Cases’ were selected in 1993/94 for detailed investigation and formal insurability decision under social welfare legislation. This process resulted in a decision by an Officer of the Social Welfare Appeals Office on 12 June 1995 who decided that a courier was self employed …. The Appeals Officer’s decision established the criteria in relation to the employment status of couriers that has, since then, been generally accepted thought out the industry and also but the Office of the Revenue Commissioners for tax purposes”.

Fact: Each case must be assessed on its own merits in accordance with the general precedents of Irish Law concerning contract of service. Operations which seem the same may differ in the actual terms and conditions in any given case.

Fact: The Revenue Commissioners did not accept that the decision by an Appeals Office of 12 June 1995, established criteria in relation to the employment status of couriers. The Revenue Commissioners were at pains to point out that the decision of 12 June 1995 was not binding on Revenue, that each case must be taken on its own merits and that the Revenue Commissioners classification of all couriers as self employed was ‘In the interest of uniformity’

Fact: The 1995 Appeals Office case was not a ‘Test Case’. It can not lawfully be a test case.

Fact: The only person to refer to the 1995 Appeal case as a test case is the Secretary General of the Department of Social Welfare and he only calls it a test case 5 years after the appeal hearing and only when under pressure to explain to the Chairman of the PAC why occupations which may differ in the actual terms and conditions are all being treated as self employed by the Department charged with determining employment status.

For 21 years this Special Tax Arrangement, based on nothing more than the Revenue Commissioners instruction to treat couriers as self-employed ‘in the interest of uniformity’ has continued. Every Scope Section determination made in accordance with the general precedents of Irish Law, which challenged this Special Tax Arrangement, has been overturned by the Social Welfare Appeals Office.

On the 30th of October 2018, the Tax Appeals Commission issued determination 23TACD2018 regarding PAYE and PRSI  (TAX APPEALS COMMISSION) which determined that a delivery driver was an employee and not self employed.

This determination from the Tax Appeals Commission is identical in all relevant detail and legal argument with the Legal Submission submitted by the Minister for Social Welfare’s Senior Counsel to the Social Welfare Appeals Office over 18 years earlier in March 2000.

On the 13th of November 2018, in Revenue eBrief No. 198/18
the Revenue Commissioners state “The previous agreement set out in Appendix 1 will no longer apply”

Fact: The Agreement set out in Appendix 1 is the Special Tax Arrangement agreed between the Revenue Commissioners and representatives of Courier Firms in the Burlington Hotel in March 1997.

Fact: For the entire duration of the agreement, both the Revenue Commissioners and the Department of Social Welfare were fully aware the classification of all couriers as self-employed was contrary to the general precedents of Irish Law and that the repeated overturning of Scope Section Determinations by the Social Welfare Appeals Office was a Political Policy which unlawfully ignored the general precedents of Irish Law.

Fact: This Special Tax Arrangement was not available as a rule to other employers to evade their PRSI obligations.

Fact: This Special Tax Arrangement with the Revenue Commissioners and the Department of Social Welfare to evade employers PRSI contrary to the general precedents of Irish Law amounts to illegal state aid for the courier industry.

The Special Tax Arrangement is not the only tax arrangement of its kind. The Revenue Commissioners and the Department of Social Welfare have a number of these special arrangements with selected industries, most notably the eRCT system.

The deliberate misclassification of employees as self-employed is an offence under the social welfare acts. It is social welfare fraud. When the State is complicit, it is Illegal State Aid.

Martin

You can support this work, the podcasts and get a free copy of the e-book I wrote on Bogus Self Employment by joining us at www.patreon.com/echochamberpod

Stephen Travers #ClapYourHands Ep. 135


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For younger generations the border in Ireland is a shadow of history. But for those with lived experience, like our guest in the #tortoiseshack, survivor and victim, Stephen Travers, the border, though long gone, will never be forgotten.

Stephen was a young man in 1975, living his dream. ‘The Miami’ regularly filled music halls and ballrooms North and South of the border. On the night of the 31st of July 1975, Stephen and his band-mates were gunned down on a lonely road by hard people intent on keeping their border ‘Hard’.

The Miami Showband Massacre the ended lives and dreams of the people who were on that road that night. But it also stopped the dance for a generation who just wanted to forget the ‘Troubles’ and be normal young people enjoying a night out. This is Stephen’s story, this is all of our story, this is where we’ve been and where we can never go back to again.

You can learn more about Stephen and TARP’s work for truth and reconciliation on Twitter @TaR_Platform or on FaceBook:https://www.facebook.com/The-Truth-and-Reconciliation-Platform-2198467067143755/

Liam Farrell #IrishMed Ep. 133

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Apart from curating the well known twitter hashtag for medics, #IrishMed, our guest in the tortoise shack, ex-family doc, columnist with the British Medical Journal, GP and Writer/broadcaster Liam Farrell has found the time to write a book ‘Are you the f**king doctor?’

Liam opens up in his about the highs of lows of his pressure-cooker job, his morphine addiction and the road back. Liam brings his unique perspective to the #tortoiseshack in this compelling interview. You can get Liam’s book at:https://t.co/zlimGTGGC6

Maria Farrell #Utopia Ep 132

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The future isn’t yet written and our guest in the tortoise shack ,writer, consultant and renowned future Utopian planner, Maria Farrell, thinks it doesn’t have to be the stuff of dystopian novels.

She joins us to discuss the pros and cons of a word where every piece of data relating to you is valuable to corporate giants. But believes that it’s not all pessimistic and the future, like she tries to do in her writing, is still ours to shape. Maria argues convincingly that we don’t need just one Utopian vision of what the future can be, we need many.

To help us on the way she proposes a #HappyLeftyBookClub and we’d love our listeners to get involved online and via patreon with their suggestions. Tell us your essential reading to help us all envisage a better tomorrow.

Dr Maeve O’Rourke #HumanRights Ep.131

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In 2019 we want to tackle structural inequality and State sanctioned violence. So there was nobody better to ask into the tortoise shack to kick off the year than the mega-impressive, award winning human rights advocate, Dr Maeve O’Rourke.

In addition to her work at the the Irish Council of Civil Liberties (ICCL), Maeve has been assisting Justice for Magdalenes Research (formerly Justice for Magdalenes) voluntarily since 2009, including co-organising last summer’s ‘Dublin Honours Magdalenes’ gathering of survivors of the Magdalene Laundries and working recently with Cllr Gary Gannon to prevent the sale of the Sean McDermott Street Magdalene Laundry site. You can read Maeve’s legal arguments on behalf of JFMR, explore the UCD/JFMR Magdalene Oral History Project, research deaths in Magdalene Laundries through Claire McGettrick’s ‘Names Project’ and find lots more information about the Magdalene Laundries at www.jfmresearch.com
For the past three years Maeve has also been voluntarily co-directing the Clann Project (www.clannproject.org) with Claire McGettrick, co-founder of Adoption Rights Alliance and JFMR. The first phase of the Clann Project was an evidence-gathering initiative where 69 lawyers from the London office of Hogan Lovells LLP provided free assistance to anyone who wished to submit a witness statement to the Commission of Investigation into Mother and Baby Homes and Certain Related Matters. 
Adoption Rights Alliance (www.adoptionrightsalliance.com) and JFMR both operate private Facebook pages for those affected. 

We could listen to Maeve for hours and are happy to lend our support to her work and her ambition for a Rights Based society. We hope you all agree.

David Hall #VultureFunds Ep.130

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We weren’t expecting to be recording any more podcasts in 2018, but our guest in the tortoise shack, CEO of Irish Mortgage Holders and Volunteer Chair of Inner City Helping Homelessness, David Hall had some things he wanted to get off his chest.

We discuss the reality of dealing with Vulture Funds, the possible motivations behind Taoiseach Leo Varadkar becoming the Vulture’s Champion and why the Central Bank of Ireland’s own report on mortgage arrears makes for extremely worrying reading.

Happy New Year to our listeners, guests and patrons and thank you for all your support in 2018.

Merry Ruthmas & a Happy New Year! Ep.129

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It’s been an amazing year in and out of the tortoise shack. To talk through it Martin and Tony sat down with the Fanciest of Fancies and host of the Natural Selection Box podcast, Ruth Fitzpatrick (@RuthieFizz)

This isn’t a review of 2018; it’s more like a highlights reel with a few things that mattered to us thrown in for good measure. Happy New Year to all our listeners and many thanks for your support.

Remember, these podcasts rely 100% on listener support. In 2019 we want to tackle systemic inequality and keep punching up. Join us.

Gene Kerrigan #TheCartel Ep.123


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When we started this podcast we said we’d get to talk to people who we never imagined, and we have. But atop of both of our Most Wanted List from day one sat one name, our guest in the tortoise shack, writer (The Scrap, The Rage), Journalist and the Sunday Independent’s Mr Back Page, Gene Kerrigan.

Do yourself a favour, find a quiet spot, plug in your earphones, turn down the volume and listen to a soft spoken man speak strongly about breaking through the PR Fog, structural inequality and the political cartel that has long dominated the Irish State.

This is the first podcast interview Gene has ever done and we are very grateful that he gave that little exclusive to us in the tortoise shack.

Happy Christmas and a peaceful and prosperous New Year to all our listeners. We are going to kick on in 2019. We hope you will join us.

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