What was the difference between the facts and circumstances of the recent IR35 decisions on radio and TV hosts, Kay Adams, Lorraine Kelly, Christa Ackroyd and Eamonn Holmes?
All three have had their business arrangements tested before First Tier Tribunal (FTT) as follows:
- In Atholl House Productions Limited v HMRC [2023] TC02263, unpon re-hearing, the FTT found that TV presenter Kay Adams was not subject to IR35. She was an independent provider of services carrying on a profession on her own account. The decision was upheld by the Upper Tribunal(UT). In April 2022, the Court of Appeal found that the decisions of both the FTT and the UT were flawed and the case was remitted back to the UT for a new hearing.
- In Albatel Limited v HMRC [2019] TC07045, the FTT allowed appeals against assessments of £1.2m on Lorraine Kelly’s personal service company. IR35 did not apply, ITV did not employ her, it was buying her brand.
- In Christa Ackroyd Media Limited v HMRC [2018] TC06334, the FTT held that a BBC television presenter was caught by the IR35 regulations. The decision has been upheld by the Upper Tribunal. The appeal related solely to the question of control and the UT held that there was sufficient control over Ms Ackroyd by the BBC for IR35 to apply.
- In Red, White and Green Limited v HMRC [2020] TC7603, the First Tier Tribunal (FTT) held that Eamonn Holmes' contract with ITV to present Good Morning was caught by IR35. There was mutuality of obligation and ITV had overall control. This decision was upheld by the Upper Tribunal.
Each case turns on its own facts, decisions made by the FTT do not set a judicial precedent however they can be very useful to follow. Upper Tribunal (UT) decisions do bind the FTT, so the cases that have been upheld by the UT have further weight.
Comparison of key features of each case
Who | Kay Adams | Lorraine Kelly | Christa Ackroyd | Eamonn Holmes |
Personal Service Company | Atholl House Productions Limited |
Albatel Ltd | Christa Ackroyd Media Limited | Red, White and Green limited |
End client | BBC | ITV | BBC | ITV |
Main programme | The Kay Adams Programme | Lorraine and Daybreak | Look North | This Morning |
Also famous for role in: | Loose Women | TV-am, GMTV, ITV Breakfast | Calendar | Sunrise (Sky News), Good Morning Britain |
Within IR35 | No A long running saga which endded up being remitted back to the FTT by Court of Appeal to hear more evidence | No | Yes - upheld by UT | Yes - upheld by UT |
A brand in their own right | Yes | Yes | Not discussed | Not discussed |
Worked mainly for End-Client | No | Yes | Yes | No |
Length of End -Client contract | 1 Year but rolled on over many years | 2.5 years | 7 years | 1 Year |
Salient features of relationship with End-Client |
Absence of control Wrote own scripts BBC did not have to consent to non-BBC engagements No use of BBC equipment No training or medicals from BBC Custom & practice to be regarded as self employed based on Radio Guidelines |
Little or no control by end client Wrote own scripts Considered a theatrical artist |
The BBC had sufficient control: Had first call on Ms Ackroyd’s time. She attended BBC training sessions Could be told by the BBC who to interview. Had to obtain the BBC's consent to non-BBC engagements |
ITV had control: Mr Holmes could not undertake work that conflicted with ITV Fixed fee paid for each show ITV could provide a substitute if needed, but Mr Holmes could not ITV provided travel and clothing ITV had full discretion and control as to editorial content |
Clothing allowance paid by End-Client | no | No | Yes | Yes |
Other points | Remitted to UT by Court of Appeal as flawed decision | Appeal dismissed by UT | Appeal dismissed by UT |
It is worth comparing the decisions in these cases with the 2023 decision in Gary Lineker & Danielle Bux t/a Gary Lineker Media v HMRC [2023] TC8774. The First Tier Tribunal found that while partnerships can be subject to the IR35 intermediaries legislation, they did not in this case as Mr Lineker had direct contracts with the Broadcasters he was engaged by. Whilst it could be argued that Gary Lineker is as much a brand in his own right as Lorraine Kelly, it would have been interesting to see how he would have fared had his services been provided through a company.
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