HMRC wins first IR35 case in 9 years

[northernladuk]

... and apparently she did ask her accountant.

That said we've long towed the line about not asking your accountant about IR35 issues and directed people to speak to the IR35 specialists.

[northernladuk]

I wonder if QDOS, IPSE, B&C etc would have defended this case if she'd had an insurance package out with them....

[Maslins]

Too many people rely on the sheer number of contractors out there as to why they won't be investigated

Agreed...and it works for the vast majority, which is no doubt a large part of why HMRC are keen to make the clients rather than contractors responsible for IR35.

[The Spartan]

Agreed...and it works for the vast majority, which is no doubt a large part of why HMRC are keen to make the clients rather than contractors responsible for IR35.

Indeed, unfortunately I've found a lot of clients are clueless about contractors which is why they tend to use recruitment companies as a middle man. Still who knows maybe it'll make clients learn about more about IR35 though I highly doubt it.

[Fred Bloggs]

Agreed...and it works for the vast majority, which is no doubt a large part of why HMRC are keen to make the clients rather than contractors responsible for IR35.

It is hard for me to see how they can pull that off without changing the law though. I know the public sector IR35 reforms were done under existing law but in the private sector it is well established and well understood that each contract for each contractor has to be assessed on its own merits. I don't see how that can change. I'm sure HMRC would love to win a single IR35 case and then apply it across several hundred contractors all working on a very large private sector project. But I don't actually see how that happen at the present time. In the meantime, I think BBC presenters and the like represent very sweet, very low hanging fruit just ripe for the picking. I don't think media presenters stand a chance in IR35 cases really anyway. Too much D&C and too much mutuality of obligation. They simply HAVE to turn up regularly at 17:00 or whenever the schedule demands, turning up at 19:00 or working from home just isn't an option.

[b0redom]

That said we've long towed the line about not asking your accountant about IR35 issues and directed people to speak to the IR35 specialists.

Yes. I was being a tad facetious. I don't see how this coud ever be outside IR35. If your job depends on turning up to read news at 5pm or whatever, how can you ever demonstrate you're not outside D&C? How can you announce you're not available for a few days? It's a role which was always demonstrably permie IMO.

[northernladuk]

Yes. I was being a tad facetious.

I know but it's a good point that can't be said enough. An accountant isn't the person to speak about IR35.

[jamesbrown]

The judgement appears to have been quite finely balanced, given the context (i.e. the superficial facts of the case point to it being less finely balanced). It appears to accept that she had a high degree of autonomy over what was presented and how it was presented, in practice, but the overriding factor appears to have been the in-principle editorial control maintained by the BBC over what work she would do under the contract and, to a lesser extent, how. It wasn’t project-based work with agreed deliverables. Fundamentally, I agree with other posters that the circumstances of being a presenter make it harder to be outside of IR35. This wasn’t a particularly egregious case for her profession, it seems. She had a high degree of autonomy, relatively speaking. I think the same applies to other professions too, like medicine. It isn’t surprising that HMRC are focusing on these areas.

179. We must consider all the factors above and the relative weight attaching to those factors. In our view the most significant factors in the present case include the fact that the BBC could control what work Ms Ackroyd did pursuant to the hypothetical contract.

[malvolio]

The judgement appears to have been quite finely balanced, given the context (i.e. the superficial facts of the case point to it being less finely balanced). It appears to accept that she had a high degree of autonomy over what was presented and how it was presented, in practice, but the overriding factor appears to have been the in-principle editorial control maintained by the BBC over what work she would do under the contract and, to a lesser extent, how. It wasn’t project-based work with agreed deliverables. Fundamentally, I agree with other posters that the circumstances of being a presenter make it harder to be outside of IR35. This wasn’t a particularly egregious case for her profession, it seems. She had a high degree of autonomy, relatively speaking. I think the same applies to other professions too, like medicine. It isn’t surprising that HMRC are focusing on these areas.

She had a lot of autonomy over content. However her editor, as the BBC rep, had total autonomy over what was broadcast.


The bigger story - and one that is being ignored - is why she made the switch from employee to contractor. It almost certainly wasn't her idea, and I know several people who were presented with the same Hobson's choice.

[BlasterBates]

The main factor "protecting" most contractors is the length of the contract, in my view any contractor who would be at one client for several years will be at the same risk. Sure, they often have substitution clauses, but never exercised and they generally don't have any other clients.

If you're not with a client for more than a few months it probably isn't worthwhile for HMRC to pursue a case.