Matthew Lawford, Director at AJ Chambers Recruitment, asks employment tax specialist Alastair Kendrick what the recent judgement tells us.
The recent decision by the Tax Tribunal that ITV presenter, Lorraine Kelly, was considered to be outside of IR35 appears to have opened the floodgates for comment by agencies and tax professionals.
It is important to appreciate that this decision was made by the Tribunal—it carries very little weight in law, and so it is possible that HMRC may appeal the decision. We will have to wait to see if this is indeed the case.
Kelly convinced the Judge that her working arrangement with ITV was such that she was not under any significant control by them, and that she did “her own thing” when presenting her show. There has been a number of comments arguing that the contract Kelly has in place should be mirrored by other TV personalities.
Conversely, we have seen the decision for BBC presenter, Christina Ackroyd, going the other way—with the announcement that IR35 rules applied. That case considered that Christina Ackroyd was very much under the control of the BBC.
Does the Kelly case give fresh hope to other TV personalities under review by HMRC? Yes and no. It depends on their working relationship with their engager.
If the personality is very much a free agent then, yes, it does give hope. Having said that, in a significant number of cases, there is significant control exercised over those who are under review.
There are a significant number of other cases of TV personalities proceeding to the Tribunal, and it will be interesting to see the pattern which emerges.