Adam Tolley QC (leading Christopher Stone of Devereux) was instructed for HMRC.
The First-tier Tax Tribunal (FTT) has decided that IR35 applied to ITV’s engagements of Eamonn Holmes, through his personal service company (Red, White and Green Ltd), for his work on This Morning. A copy of the decision is available here.
In light of a detailed review of the case law, Judge Morgan concluded that a hypothetical direct contract between ITV and Mr Holmes would have given rise both to sufficient mutuality of obligation and a sufficient framework of control by ITV over his work. A lack of control in the moment of delivery in a live broadcast did not matter. The FTT also held that other factors were consistent with an employment relationship. Overall, the pattern of engagement had the quality and characteristics of a part time employment.
The decision is likely to provide useful guidance for employers in applying the legislative reforms to IR35 in the private sector, whereby they are required themselves to determine whether IR35 applies to the engagement of contractors through personal service companies. It shows that IR35 may apply to an engagement involving part-time work and where the contractor has a number of other clients.
This is the latest in a line of recent decisions in the tax tribunals which deal with issues of employment status. Adam Tolley QC has been involved in several of these cases, including in the FTT and Upper Tribunal in Christa Ackroyd Media Ltd, and in the FTT in Paya Ltd and others, all involving BBC news presenters. An appeal to the Upper Tribunal in Atholl House Productions Ltd will be heard in November.
