HMRC loses IR35 appeal against TV presenter

• HMRC has lost its appeal against TV presenter, Kaye Adams, upholding an earlier ruling that she was in fact a freelance worker rather than an employee during the 2015/16 and 2016/17 tax years.
• The Upper Tribunal upheld the earlier decision, made by the First Tier Tribunal in 2019, finding that Adams was outside the scope of IR35 legislation.
• HMRC appealed the original decision, insisting that Adams was an employee despite providing her services via a personal service company and therefore owed more than £140,000 in outstanding tax.
• HMRC also argued that the First Tier Tribunal’s conclusion was incorrect on the basis that they did not have enough evidence to determine whether Adams had been self-employed over the 20 years of her career.
• However, it was agreed in both the First Tier Tribunal decision and the Upper Tribunal that there was no mutuality of obligation and therefore her contract fell outside of IR35. The contract did not require Adams to offer her services exclusively to the BBC and she was able to take on other contracts.
• The issue of control was also addressed with HMRC arguing that the BBC had ‘significant control’ over the content of each show. It was decided that, in reality, Adams had a large degree of autonomy in order to decide the content and direction of each episode.

See the full case here.

Aspire comment:

This case further demonstrates the complexity in determining whether IR35 applies and the multitude of factors that must be considered on a case by case basis.

With the off-payroll working rules due to change on 6 April 2021, it is imperative that employers take reasonable care in making status determinations and do not rely on blanket determinations. Medium and large ‘clients’ will be liable for determining the tax status of contractors who work through Personal Service Companies, and failure to apply the legislation correctly will result in tax and national insurance liabilities.

Another important aspect is to ensure that you have robust contracts in place which accurately demonstrate the reality of the arrangement.

Aspire can offer bespoke IR35 training to prepare you and your staff ahead of April 2021. If you need any support on IR35, due diligence or any other employment matters, call us today on 0121 445 6178 or email enquire@aspirepartnership.co.uk.