Presenter defeats HMRC in £124k IR35 case

25th April 2019
Written by Qdos Contractor

Loose women presenter defeats HMRC is £124,000 IR35 case

Last week, Kaye Adams, presenter of the ITV television show, Loose Women, amongst other programmes, dealt another blow to HMRC’s already damaged reputation by successfully appealing an IR35 case that carried £124,000 in tax liability.

Ms Adams’ victory comes only a short space of time after it was revealed that another high-profile presenter, Lorraine Kelly, won an IR35 tribunal worth £1.2m. At the time of writing, the broadcast journalist Eamonn Holmes, is awaiting the outcome of his IR35 court case. According to reports, this carries an eye-watering £2m in IR35 liability.  

It’s thought that HMRC has plenty of well-known journalists in its sights. But aside from winning its case against The BBC presenter, Christa Ackroyd, last year, in what has been described as a fairly clear-cut decision, the taxman has had very little success in recent years. Kaye Adams’ victory makes it just one outright win in twelve tribunal attempts this decade for HMRC.

Judging by the notes from Ms Adams’ case, the working engagements being scrutinised (two yearly BBC contracts in 2015/16 and 2016/17) bore many of the hallmarks of a contract for services and not, as HMRC argued, a contract of service.

As was also the situation with Lorraine Kelly’s contract with ITV, the overall level of Control that Ms Adams had over the way in which she carried out her work, along with the fact that the engager (The BBC) did not have “first call” over her time or services, built a strong enough case for belonging outside IR35. The notes described this as “crucial” and concluded, “the overall impression which we have derived from the evidence before us is that Ms Adams generally carries on her profession as an independent provider of services and not as an employee.”

This is despite Ms Adams only having the right to provide a substitute “in exceptional circumstances and subject to The BBC’s prior approval” and that it was agreed Mutuality of Obligation (MoO) was present to an extent. Although, that these two typically important factors in IR35 determinations weren’t considered pivotal in the final verdict isn’t unusual given the role in question.

To an extent, it’s difficult for presenters to be able to substitute in another contractor, particularly when the programme - in this case, ‘The Kaye Adams Programme’ - relies so heavily on their personal involvement. This was also considered in Lorraine Kelly’s recent IR35 win.

With regards to MoO existing in Ms Adams’ engagements with The BBC, this was not significant enough to overshadow that the presenter “enjoyed a great deal of autonomy in terms of dictating the content of the programmes she presented.”

It’s worth noting that The BBC did hold ultimate editorial control in writing, but it was decided that Ms Adams “was in control of the microphone during the show and decisions leading up to the presentation of the show were made on a collaborative basis with the editorial team, as opposed to being imposed on her by the editorial team.”

In addition to working on other projects while engaged by The BBC and having “been a freelance journalist for over 20 years”, there were a number of other points which showed Ms Adams was in business independently and her contract did not belong inside IR35. These included:

  • Not being entitled to employment benefits, such as holiday or sick pay, maternity leave or any pension contributions
  • Being responsible for providing her own clothing
  • Not receiving performance reviews, which is the case with BBC employees
  • Having to maintain her own brand and reputation, similar to any other business

While it’s rare that one or even two cases set a precedent, that Ms Adams and Lorraine Kelly both eventually won their battles with HMRC will be comforting to the many other presenters who the taxman is reportedly targeting.

On the other hand, however, HMRC’s latest loss is reflective of the taxman’s insistence on pursuing genuinely self-employed workers for what The Treasury believes is thousands - and in this case well over £100,000 - in missing tax. Therefore, the need for contractors to be confident in their IR35 status is paramount. 

Qdos Contractor
Written by
Qdos Contractor
Award-winning providers of insurance for the self-employed, Qdos are the leading authority on IR35, offering industry-leading employment status services to ensure the flexible working industry thrive. Qdos are the Best Contractor Insurance Provider 2022 and won the Queen’s Award for Enterprise in Innovation 2022 and 2017. 

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