Reply to: HMRC win an IR35 appeal

[Fred Bloggs]

given what Cojac said that she was happy to be an employee and the BBC forced her into this situation, I guess she might be successful in suing for employment rights. I just can't understand why no one so caught at the BBC has done this yet, unless the BBC is paying all of the back tax.

This person could have avoided all the fuss by simply declaring herself inside IR35 and paying the due tax. Why didn't she? No idea but I could guess.

[JohntheBike]

I wonder what the basis of her defense and grounds for appeal was ? Because as you say, its hard to see how she could ever have been outside...

The "they made me do it" defense was never going to work

given what Cojac said that she was happy to be an employee and the BBC forced her into this situation, I guess she might be successful in suing for employment rights. I just can't understand why no one so caught at the BBC has done this yet, unless the BBC is paying all of the back tax.

[Paralytic]

I think it would be a mistake to lump all TV presenters in together..

Personally, I think that would be a good thing, so long as we can lock door afterwards.

[Lance]

I think it would be a mistake to lump all TV presenters in together as clearly some presenters can command a lot more independence and control over others. The Lorraine Kelly case was particularly convincing to me (I read the judgement) despite the negative press she got about it over the whole "playing a character" thing (which was completely unrelated to IR35 anyway and was about the deductibility of her agent fees). She has a large degree of editorial control, flexibility over studio arrangements (she could broadcast from other locations if needed), could take time off and send in a substitute etc. Completely different situation to somebody who turns up to a studio each week, reads an autocue and does what they are told to do.

Indeed. But the suggestion was that TV presenters are clearly all inside.
That's like saying that clearly all IT people are inside.

[TheCyclingProgrammer]

Ahem...... Lorraine Kelly...... ahem.......

I think it would be a mistake to lump all TV presenters in together as clearly some presenters can command a lot more independence and control over others. The Lorraine Kelly case was particularly convincing to me (I read the judgement) despite the negative press she got about it over the whole "playing a character" thing (which was completely unrelated to IR35 anyway and was about the deductibility of her agent fees). She has a large degree of editorial control, flexibility over studio arrangements (she could broadcast from other locations if needed), could take time off and send in a substitute etc. Completely different situation to somebody who turns up to a studio each week, reads an autocue and does what they are told to do.

[dx4100]

I actually think that would be a terrible waste of license fee money and very hard to justify.

As someone else has said, no one forced her to pay herself dividends vs PAYE and she has clearly not given much respect to IR35 at any point.

[krytonsheep]

Not sure if this means the BBC may actually help out in cases like this? Or if it's just for cases post IR35 reform.

Our aim remains to settle the historic issues, at an acceptable cost to the licence fee payer, by resolving most of the retrospective claims that HMRC may have against the presenters or the BBC in respect of any
classification of their employment status. The Board considers that a settlement option with either HMRC or individual presenters is in the best interests of the BBC, the licence fee payer, and the individuals involved and is likely to be both less costly and quicker to resolve. Should cases be resolved with individuals, any payments to, or on behalf of, presenters will only be made where there is a legitimate demand from HMRC and where the BBC can determine
the amount due. This would be based on the difference of the tax that would be due under IR35 versus that which is due by the PSC and individual paying corporation and dividend tax. Within the 2018/19 BBC accounts, a provision of £12 million is included for such payments. The provision has been estimated by looking at all individuals affected and then applying assumptions, based on conversations with HMRC; recent tax tribunal rulings; and the advice of external advisors.

Page 97
BBC Group Annual Report and Accounts 2018/19

[eazy]

Forced to use PSC

I have seen stated that se was forced by the BBC to work through a limited company. I would not have thought BBC forced her to pay a low salary and high dividends. She could have paid all income as employment earnings and paid Tax / NICs accordingly.

[Lance]

And she worked for itv

Good call.
The point still stands. If you have evidence to demonstrate you're not an employee, as well as a contract that supports it, then you're good. The client is irrelevant.

[Anonimouse]

And she worked for itv

[boxingbantz]

Have to honest here and say that I can't see any possibility of anyone working for the BBC really being self employed. Turn up at a set time every week. Read the script given to you every week. At a set time and place every week. Delivered over fifteen minutes exactly at the same time each week at the studio of the BBC's choice. No scope for doing anything your own way or making the show more efficient to your own benefit. Zero business risk. 100% cannot send in a substitute etc.... How much further inside IR35 is it possible to be?

100% agree.

She had a Right of Substitution clause and a ready-made replacement on standby

[Paralytic]

Ahem...... Lorraine Kelly...... ahem.......

She had a Right of Substitution clause and a ready-made replacement on standby

[Lance]

Have to honest here and say that I can't see any possibility of anyone working for the BBC really being self employed. Turn up at a set time every week. Read the script given to you every week. At a set time and place every week. Delivered over fifteen minutes exactly at the same time each week at the studio of the BBC's choice. No scope for doing anything your own way or making the show more efficient to your own benefit. Zero business risk. 100% cannot send in a substitute etc.... How much further inside IR35 is it possible to be?

Ahem...... Lorraine Kelly...... ahem.......

[dx4100]

Have to honest here and say that I can't see any possibility of anyone working for the BBC really being self employed. Turn up at a set time every week. Read the script given to you every week. At a set time and place every week. Delivered over fifteen minutes exactly at the same time each week at the studio of the BBC's choice. No scope for doing anything your own way or making the show more efficient to your own benefit. Zero business risk. 100% cannot send in a substitute etc.... How much further inside IR35 is it possible to be?

I wonder what the basis of her defense and grounds for appeal was ? Because as you say, its hard to see how she could ever have been outside...

The "they made me do it" defense was never going to work

[Fred Bloggs]

Have to honest here and say that I can't see any possibility of anyone working for the BBC really being self employed. Turn up at a set time every week. Read the script given to you every week. At a set time and place every week. Delivered over fifteen minutes exactly at the same time each week at the studio of the BBC's choice. No scope for doing anything your own way or making the show more efficient to your own benefit. Zero business risk. 100% cannot send in a substitute etc.... How much further inside IR35 is it possible to be?