Another defeat for HMRC - £140k TalkSPORT host (Update: they won in the end)

[Lance]

well, as the poster asked, why would HMRC only challenge him for a selected period from his history of engagements and that outside the period for lodging an ET claim? If they had challenged him on his current period, then clearly that might have opened up the possibility that he would have claimed employment benefits.

The message I will continually post is that HMG oppression can only be countered in the courts, no amount of debate or lobbying will change the oppression. Using the ET, which is outside the influence of HMRC, unless they are the client, is a very good way in my opinion of attacking IR35.

The Matthew Taylor report recommended that tax and employment status determinations should be standardised, but HMG rejected this. So this can only be achieved by using the courts to establish this principle.

how so?
If that is the best attack then everyone becomes employed.
Using ET is an attack on the clients. I grabnt you that if clients start to fear tribunals from contractors they'll step up their understanding of IR35. This will result in the majority of bum on seat contractors becoing FTCs. And the rarer skilled senior contractors will be able to drive the position outside.
Either way it won't bother HMRC one way or the other.

After April this may well all become academic though.

[BlasterBates]

yes, we know this, but there is provision to appeal this given a valid reason.

Do you have an example where someone caught inside IR35 claimed employment benefits ?

I can't imagine being caught inside IR35 would be an adequate reason for bringing a case after 3 months because a court would argue the plaintiff should have known.

[WordIsBond]

could it be that they were worried that he'd make a claim in the ET for employment benefits?

Why would they care if he did?

[SussexSeagull]

Tax and employment laws are entirely separately beasts. Incorrectly, some might argue. A future Labour government trying to tackle forced self employment in generally low paid jobs might change this and drag contractors along but that is highly speculative.

Non the less employment benefits will enter the equation for contractors considering what to do post April next year.

[FIERCE TANK BATTLE]

Do you have an example where someone caught inside IR35 claimed employment benefits ?

I can't imagine being caught inside IR35 would be an adequate reason for bringing a case after 3 months because a court would argue the plaintiff should have known.

Didn't that happen with HMRC's own contractor? IIRC HMRC said you're inside IR35, pay up, and they said OK give me my holiday entitlement, and HMRC said no, and they went to court and HMRC lost.

Something like that.

Edit: IPSE: Meet the woman who took on HMRC, and won

[eazy]

UT : IR35: Final score for Kickabout Productions

Tribunal Decision
https://assets.publishing.service.go..._Kickabout.pdf

Sports radio presenter Paul Hawksbee has lost his battle to show that his relationship with TalkSport Radio lay outside of IR35, leaving his company Kickabout Productions Ltd with a tax and NIC liability of £143,126.

Mutuality of obligation
The UT concluded that TalkSport did have an obligation to provide work for Hawksbee under both of the contracts, and in turn Kickabout was obliged to make Hawksbee available, so MOO was present. The UT concluded that the FTT made an error of law on this point. However, the UT decided not to refer the case back to the FTT, but remade the decision itself.

Control
The UT considered the facts relating to control and found that TalkSport had little control over how Hawksbee did his work, but the radio station did have control over what tasks Hawksbee should perform, when and where he performed those tasks. The UT concluded there was sufficient control by TalkSport over Hawksbee to be consistent with an employment contract (inside IR35).

Other factors

For completeness the UT considered what other factors pointed at self-employment or an employment relationship.

The pointers towards employment were:
• The fact that Hawskbee had been presenting the show for 18 years
• Hawksbee could not provide a substitute
• There were exclusivity provisions in the contracts
•The contracts required four-months’ notice of termination

The pointers to self-employment included:
• Fixed fee per show, which demonstrated a degree of financial risk
• Narrow task to be performed
• No worker rights such as sick pay, holiday pay
• No intention to form an employment contract
• No requirement for Hawksbee to complete training or undertake medicals
• Hawksbee was not part and parcel of the organisation

See AccountingWeb for details
IR35: Final score for Kickabout Productions | AccountingWEB

[TheDogsNads]

Tribunal Decision
https://assets.publishing.service.go..._Kickabout.pdf

Sports radio presenter Paul Hawksbee has lost his battle to show that his relationship with TalkSport Radio lay outside of IR35, leaving his company Kickabout Productions Ltd with a tax and NIC liability of £143,126.

Mutuality of obligation
The UT concluded that TalkSport did have an obligation to provide work for Hawksbee under both of the contracts, and in turn Kickabout was obliged to make Hawksbee available, so MOO was present. The UT concluded that the FTT made an error of law on this point. However, the UT decided not to refer the case back to the FTT, but remade the decision itself.

Control
The UT considered the facts relating to control and found that TalkSport had little control over how Hawksbee did his work, but the radio station did have control over what tasks Hawksbee should perform, when and where he performed those tasks. The UT concluded there was sufficient control by TalkSport over Hawksbee to be consistent with an employment contract (inside IR35).

Other factors

For completeness the UT considered what other factors pointed at self-employment or an employment relationship.

The pointers towards employment were:
• The fact that Hawskbee had been presenting the show for 18 years
• Hawksbee could not provide a substitute
• There were exclusivity provisions in the contracts
•The contracts required four-months’ notice of termination

The pointers to self-employment included:
• Fixed fee per show, which demonstrated a degree of financial risk
• Narrow task to be performed
• No worker rights such as sick pay, holiday pay
• No intention to form an employment contract
• No requirement for Hawksbee to complete training or undertake medicals
• Hawksbee was not part and parcel of the organisation

See AccountingWeb for details
IR35: Final score for Kickabout Productions | AccountingWEB

Hawksbee not 'part and parcel' of the organisation but had been presenting the same programme for 18 years? I know they said these were pointers but those two are paradoxically opposed.

Oh, and Alan Brazil must be crapping himself at this decision.

[elsergiovolador]

did have control over what tasks Hawksbee should perform, when and where he performed those tasks.

Companies with less than 50 employees will be exempt, but given that for larger companies it will be problematic to contract anyone without PAYE.

No more odd cleaning jobs.

[quackhandle]

So the 143k HMRC want was from a specific contract? Maybe he should be lucky they aren't going after him for the whole 18 years?

Or maybe they will?

qh

[Fred Bloggs]

I am pleased with the decisions relating to media personalities. It is a blatant abuse by the media companies and the presenters that they are not employees. Anyone broadcasting to a schedule dictated by the company presenting what the company tells you to do at a certain time and place for nearly twenty years? Come on, how are they NOT employees? Both the companies and the presenters have been getting away with murder for decades. Long overdue that it stops and these wealthy people bear their burden like everyone else.