There have been two IR35 case outcomes published this week, both concern TV presenters so you might expect them to be similar, but they each had a different outcome.
Gary Lineker Wins at First Tier Tax Tribunal, HMRC loses
Former footballer and now TV presenter was accused by HMRC of underpaying £4.9m in tax and national insurance whilst engaged by the BBC and BT Sport in various contracts spanning 201 to 2020. James Rivett KC, who represented Gary Lineker, argued that “IR35 has nothing to do with it, they (HMRC) just looked in the wrong direction, and it proceeds from this assumption that a partnership is in some way an entity, and it isn’t, not this type of partnership.”
Tribunal Judge John Brooks agreed, finding that Lineker had entered into the contracts directly, and as such he concluded that “the intermediaries legislation (IR35) does not, and cannot as a matter of law, apply”. Had the tribunal found that Lineker had been engaged via an intermediary, for example a limited company (rather than the partnership) then the IR35 rules would have had to be considered.
HMRC may yet decide to appeal the tribunal decision.
Eammon Holmes Loses at Upper Tribunal, HMRC wins
Within days of Lineker winning his IR35 case, news broke of Eammon Holmes losing his case at a hearing of the Upper Tax Tribunal. An earlier tribunal had concluded that the presenter was operating as a disguised employee when engaged by ITV to present This Morning between 2011 and 2015. The case hinged on the aspect of control, with the Judge agreeing with the previous findings that there was control indicative of an employment relationship.
Holmes’ appeal submitted that the earlier tribunal had focused too much on editorial control and overlooked or gave little weight to factors where ITV did not and could not exercise control. However, the tribunal disagreed, stating: “Overall, we do not detect any error of law in the approach of the FTT [First Tier Tax Tribunal] to the question of control.”
His appeal also argued that the FTT gave no weight to Mr Holmes’ other activities, in particular the fact that he was in business on his own account and having multiple other clients. This is a key point because another TV presenter, Adrian Chiles, won his IR35 case due to being in business on his own account. However, the tribunal concluded that “We do not accept that the FTT failed to consider whether the ITV contract was part of a wider business activity.”
What these cases show us is that IR35 is complicated, and that HMRC are not even certain themselves! If you are unsure how it impacts on you then it’s definitely worth getting some independent advice. We partner with Qdos Contractor for this service, they have years of experience plus they offer 10% for IWORK readers.
