Kaye Adams wins IR35 battle with HMRC

The news that radio and TV presenter Kaye Adams has won her long-running IR35 dispute with HMRC has got people talking.

And although Ms Adams is technically the victor, she herself has admitted the nine-year battle has not only left her out of pocket but has caused her considerable mental stress.

In the latest of four court decisions, the First-tier Tax Tribunal (FTT) has backed Ms Adams’ personal service company – Atholl House Productions Ltd – in its appeal against HMRC’s claim that she was a BBC employee.

The FTT has found that Ms Adams wasn’t subject to the IR35 off-payroll working rules because she was self-employed.

Background to the Kaye Adams IR35 case

Ms Adams performs services for the BBC and other media organisations (she’s particularly well known for her appearances on ITV’s Loose Women.) Plus, she’s worked extensively in the corporate sector, hosting events and awards evenings and giving presentations, and is also an author.

The latest decision by the FTT relates to an appeal the tribunal first considered in March 2019. In that ruling, the FTT found in favour of the appellant, Atholl House.

That decision went on to be upheld on different grounds by the Upper Tribunal (UT). The UT set aside the FTT’s original decision on the basis it contained errors of law but went on to remake the decision based on the facts the FTT had found. It reached the same conclusion in favour of Atholl House as the FTT had done in its original decision.

The tax years in question

At the heart of the issue is whether IR35 applied to the arrangements between Atholl House and the BBC. If it did, then Atholl House was liable to pay income tax under the PAYE system and National Insurance contributions (NICs) in respect of the earnings under those contracts as if Ms Adams had been employed by the BBC.

The appeal originally related to the four tax years ending 5 April 2014 to 5 April 2017 (both inclusive). HMRC didn’t oppose the appeal as regards the first two of those tax years, but it has consistently maintained its opposition to the appeal concerning the tax years ending 5 April 2016 and 5 April 2017. The total amounts involved for those tax years are income tax of £81,150.60 and NICs of £43,290.98.

During the two tax years in question, Ms Adams presented ‘The Kaye Adams Programme’ on BBC Radio Scotland. The show ran for three hours on each weekday morning.

During those two years, Ms Adams provided her services to the BBC in accordance with two agreements between the BBC and Atholl House.

The Court of Appeal

After HMRC lost its appeal at the Upper Tribunal, it took the case to the Court of Appeal (CA). The CA then sent the case back to the UT, which in turn sent it back to the FTT.

(Phew! I hope you’re keeping up!)

Back to the First-tier Tax Tribunal

It probably won’t surprise you that when making its judgement in late November 2023, the FTT admitted the case was “very difficult”.

It concluded the extent of Ms Adams’ commitment to the BBC was to be tempered by her being engaged by many organisations, other than the BBC, for many years. She’d spent a meaningful percentage of her working time on those other engagements.

The FTT also pointed out that while a long relationship can in certain cases be indicative of employment, it was perfectly possible for a worker to retain the status of self-employment over many years if the other features of the relationship pointed in that direction.

The tribunal added that the terms of the hypothetical contracts and the circumstances in which the hypothetical contracts arose pointed toward a conclusion of self-employment.

The FTT backed Atholl House’s appeal.

Will HMRC appeal… again?

HMRC has been given 56 days from the date of the decision to appeal the ruling if it wishes.

Kaye Adams’ response

In a statement to ContractorCalculator, Ms Adams said: “I am delighted that the First Tier Tribunal has confirmed my self-employed status for the third time, but there is no jubilation for me in this result. Over the nine years of this investigation, the mental stress has been close to unbearable at times, and the legal costs I have incurred far outweigh the tax at stake.”

What is IR35?

The off-payroll working rules (IR35) make sure a worker (sometimes known as a contractor) pays broadly the same income tax and National Insurance as an employee would.

The rules apply if the worker who provides services to a client through their own intermediary would have been an employee if they were providing their services directly to that client. (The intermediary is usually a limited company, often known as a personal service company.)

The party responsible for applying the rules must determine whether the worker is employed for tax purposes. A worker’s employment status for tax determines the taxes the worker and the deemed employer need to pay, depending on whether a worker is deemed as employed or self-employed.

My advice for taxpayers

The IR35 rules are complex, so it’s often sensible to get professional advice.

The legislation was introduced to deter large businesses from encouraging people, who would otherwise be staff members, from setting up their own limited companies or claiming to be self-employed. And HMRC has tightened these rules over the years.

But being inside IR35 comes with its own complications, like how to pay deemed tax and what to do about tax already paid incorrectly to HMRC.

Guidance for accountants, agents and tax advisers

It’s important for professional advisers to stay up to date with the changes, so they can advise their clients.

IR35 is a minefield that raises various issues, for example how to ensure a company’s workforce is taxed correctly.

My reaction to the Atholl House Productions v HMRC case

HMRC has been involved in several high-profile cases over the years. Perhaps this reflects its determination to publicise the rules and discourage people and companies from using ‘off-payroll’ arrangements to reduce the amount of tax payable.

The Kaye Adams case is a perfect example of an HMRC dispute that has taken on a life of its own. Ms Adams has spent more in legal costs than the tax at stake to prove her position, and it’s been estimated HMRC has spent around £250k on the case. This is all because each party wanted to prove their own stance.

It may therefore sometimes appear the only winners in such high-profile cases are the lawyers!