[Solved] Diversion of Income

First time post.

I am currently waiting for my tribunal date to appeal a variation based on Diversion of income and just wanted to hear peoples thoughts to see if my thought process is sound, or if there are an gaps I have missed. I will provide a short insight into the case and will clarify anything else that is asked.

So I have a son who is nearly 12 with my ex, we split in 2010 and he has split his time between us, 3 nights with me and 4 with her per week, on average. I have paid CSA and now child maintenance. She has always kept it just away from 50/50 to keep me as her cash cow despite me paying for uniform, clothes, after school activities, etc.

So in Sept 2017 I started my own company and in Nov 2017 started trading, I'm a contractor in the construction industry. My full time role was a bit up in the air due to client contracts being cancelled so I branched out on my own. I took a contract with a former employee along with a couple of others. I have carried on trading from then until now working regularly with 4-6 clients at any one time. My wife and I have 50/50 shares. In April 2018 my wife was offered redundancy and accepted and since then we have worked together with her as a shareholder, director and employee of the company.

With me moving to work for myself I let the CMS know and they reduced my liability calculation as at that moment I was drawing a minimum salary and dividends when I had enough, without a tax return I only had the wage slips for the CMS which is what the calc was based on.

In May 2018 my ex rang the CMS stating that my lifestyle was inconsistent with income, The CMS put this to the FIU but it was rejected. In Nov 2018 she rang again stating the same, this time the FIU took the case and wrote me a letter asking for accounts and self assessments. I sent these accordingly. I heard nothing for 6 months, then I got asked to an interview, I attended and was asked questions about my clients and working practices. It transpired that they had contacted my old employer and asked them for not only information about when I worked there, but invoices and contractual information regarding the then current contract of services. The information that the employer had sent was factually incorrect in terms of working practice, but also against the contracts in place.

Another 5 months went by and I received a letter from the CMS saying that they had put a variation on my file for the full amount of the companies turnover, minus tax. I asked for an MR and sent over 200 pages of material to support a full review. It was denied. I then sent the information to the tribunal and had the application accepted for appeal.

In this time I made several right of access requests as very little information came back from the FIU and the CMS.

I found out that the MR I asked for was not conducted properly, they asked the FIU case officer his thoughts, he said that reviewing the information would be repetition and not to do it. I found out that my ex had written a letter to the CMS/FIU stating untrue facts. I found out that there was constant dialogue with my ex on the matter trying to push the matter to collect and pay, etc.

The grounds for my appeal are this and I would love to know peoples thoughts.

Employment Status: The FIU closure report says that the variation was granted on a challenge to my employment status. Being a contractor, I am well aware of employment status law and it cannot be just decided, it is based on complex case law. There was no reasonable care taken to determine my employment status by putting my contract through the CEST tool, it was just decided. If I can prove my employment status is not one of a PAYE employee, then the calculation is wrong.

The FIU stated that because I disagreed with them in the interview, it is misrepresentation, and therefore REG 14 of the 2012 legislation applies. I did not misrepresent in the interview, I pointed out how the information was wrong, I directed them to clauses in the contract that show there information was wrong. I have also found an error in their report where they have misrepresented. I feel they have used this clause so that the effective date of the variation is the date that I let the CMS know my income had reduced. If reg 14 does not apply then they need to move to reg 17 which moves the effective date.

They have ignored that my wife is a 50/50 shareholder, employee and fee earner in the company. They even stated in their notes that disassociating her from the company when she has no other employment will be difficult, yet they did. I cannot see how they can.

It might seem long winded and erratic, but I've tried to summarise so people will read through. As mentioned any fleshing out can be given.