For contractors, here’s an IR35 case law refresher (because even us lawyers can hardly keep up)
In the last six months alone, there have been a plethora of tax cases on IR35 and self-employment. Some in the tribunals and one in the Supreme Court but, all illuminating in their own way. Whether these cases have actually served to provide clarity, or just muddied the waters remains to be seen.
What’s more certain is that keeping up with all these cases requires nothing short of dogged determination. What’s certain too, is that HMRC is winning on appeals, so contractors might want to take a closer look with me here of where and on what grounds the taxman is doing better than he was, writes tax lawyer Rebecca Seeley Harris, founder of ReLegal Consulting.
PGMOL – the football referees case
In September 2021, The Court of Appeal heard HMRC v. PGMOL.
This case involved self-employed football referees and focused on mutuality of obligations and control, but in both the overarching contract and the individual contract.
The court considered that it was the individual contract that was important and, interestingly, that a single engagement can give rise to a contract of employment if work that has in fact been offered is in fact done for payment. This was again reiterated in Atholl House in the Court of Appeal.
In PGMOL, the Court of Appeal allowed HMRC’s appeal and held that the First-Tier Tribunal and the Upper Tribunal both erred in their decisions. The case has been referred back to the tribunal to re-make the decision.
For Match of the Day presenter Adrian Chiles, it’s a rematch
In February 2022, there was another IR35 case involving a top TV presenter.
This time it was Adrian Chiles in the FTT in Basic Broadcasting Ltd v. HMRC. This case followed the example of the UT in Atholl House in using the ‘in business on your own account’ test.
The director of BBL, Mr Chiles won this case based on him being in business on his own account but, based on the latest judgment in Atholl House (see below), HMRC will now be champing at the bit to appeal the Chiles case, which it lost at FTT.
Another IR35 case striking a football pundit -- this time Neil McCann, best known as a presenter for Sky Sports.
This case was in the FTT but, unlike Adrian Chiles’ case, the tribunal found that Mr McCann was not in business on his own account, so HMRC won -- again. As the Atholl House case at the Court of Appeal appears to show (see next section), reliance on the ‘in business on your own account’ test may be questionable.
In late April 2022, we saw the two latest court outings for Atholl House involving Kaye Adams, whose IR35 status was questioned in relation to her presenting for BBC Radio Scotland, and Kickabout Productions Ltd, involving Paul Hawksbee, whose ‘inside’ IR35 status was being appealed in relation to his presenting for Talksport.
Both cases were heard concurrently in front of the same panel of judges at the Court of Appeal. And both judgments were handed down at the same time and in both judgments, HMRC won.
These two cases were important – historical even -- because they represent the first time that IR35 cases have reached the Court of Appeal. They may yet reach the Supreme Court!
There were several grounds of interest in Atholl House -- one being the defence of using Autoclenz which the Atholl House team were relying on. So it was a big blow to their team when the court said that Autoclenz could not be used.
Similarly feeling disappointment on the day no doubt, HMRC lost their argument on the narrower view of mutuality but, ultimately, HMRC won the appeal -- because the court held that both the FTT and the UT had erred in law in making their decisions, and that’s what HMRC wanted to hear. Again, the case has been referred back to the tribunal to re-make the decision.
It’s probably fair to say that the presenters and their legal teams in all the IR35 cases mentioned herein feel sufficiently kicked about! The to-ing and fro-ing just to get an individual’s IR35 status sorted and beyond challenge is bruising, exhausting, and seemingly never-ending.
But specifically in the Kickabout appeal, the determination was fairly straightforward and based mainly on the fact that Talksport was required to offer Kickabout work on 222 programmes per year -- and Kickabout was obliged to make Paul Hawksbee available to do that work. So, there were mutual obligations.
But control was also a significant factor. The takeaway from the Talksport case – to be noted by contractors who have a schedule -- is that it was the schedule to the contract that defeated the employment status claim. And this was despite there being a no mutuality clause in the body of the contract!
Ready Mixed Concrete
All the IR35 cases outlined above started with the three-stage test in Ready Mixed Concrete.
All seem to agree that although mutuality of obligations and control, the first two stages, could be present -- that doesn’t necessarily mean that it is a contract of employment and they should be treated separately from other factors. What is important is the third stage and whether the terms of the agreement are consistent with there being a contract of service or employment.
The difficulty comes in establishing how you identify whether the terms are consistent, especially when you are dealing with a hypothetical contract, in the case of IR35. Unhelpfully, the Court of Appeal’s guidance on this was not, in my opinion, very clear. In Atholl House the Court of Appeal said: “That contract, like any other agreement in writing, should not be construed in a vacuum, but in the light of the admissible factual matrix.”
If you’ve just scrolled down to the end; I feel your pain! Here’s your need-to-know
What this big medley of IR35 case law effectively says is, despite us all being partial to the odd shortcut (you who scrolled to the end included!), one must stand back and look at the whole picture of the factual matrix. And that stand-back exercise must be done on the basis of what is written in the contract.
So, the ‘need-to-know’ for contractors here is this -- make sure that your contracts reflect the true relationship between the parties, and triple-check that the schedules don’t let you down by causing a conflict, as it did in Kickabout.
Lastly, two jigsaw pieces are missing
The bigger picture away from your paperwork? Apart from the Adrian Chiles case, HMRC has won all of the appeals, although two of them have been remitted back to the tribunal. So we now await the re-made decisions in PGMOL and Atholl House, and both are vital to understanding what next, potentially, for contractors who want to continue keeping IR35 at bay, or something their end-user agrees their assignment is not caught by.