HMRC loses another IR35 appeal

Atholl House Productions Ltd v HMRC.

Kay Adams is best known for her appearances on ITV’s Loose Women and the BBC’s Kay Adams Show. This dispute concerned Kaye’s work for the BBC which she provided via her own personal service company, Atholl House Productions Ltd. HMRC argued that Kaye was a BBC employee and not a freelancer, and therefore challenged her tax assessments over a two year period.

They did this under IR35 – tax legislation designed to tackle tax avoidance by employees who disguise themselves as “self-employed” in order to make tax savings. The first-tier Tribunal held that IR35 did not apply to Kaye Adams.

Some of the reasons for this included:

, The terms of the agreement did not match what actually
happened in real life. For example:

o first call on the presenter’s time and control over her other engagements, but neither party were aware of these terms; and
o that although there was an express right of substitution, this was not practical because it was her show, and so was discounted; and
, The presenter’s long history of freelance work, lack of access to BBC systems to perform BBC work from home, and the fact that the BBC’s formal processes, such as reviews, did not apply to Ms Kaye.

Legal opinion

Coming only a month after Lorraine Kelly won her IR35 case against HMRC, this is another high-profile loss for HMRC. The case is a reminder of the importance of ensuring that the terms of a contract reflect the situation in practice.

It is important to bear in mind that when determining a worker’s status, that determination must be based on facts. Additionally, be wary of drawing conclusions from cases which may appear similar but
in fact may be very different.