Media presenter Kaye Adams of Atholl House Productions Limited has won her IR35 case after nine years and four tax tribunal hearings.
Judge Tony Beare delivered his decision on 29 November 2023, again upholding Ms Adams’s appeal. None of the four hearings ruled that HMRC was right to claim that Ms Adams was a “deemed employee” at the BBC during the tax years 2013/14 to 2016/17.
The case concerned a headline tax figure of £124,000, which would have likely been reduced to around £70,000 once taxes already paid by Atholl House and Ms Adams were taken into consideration. The extra taxes were primarily due to employment taxes, typically paid by hirers in employment circumstances but payable by the worker under the original IR35 rules, an unfair anomaly rectified under the newer Off-payroll working legislation.
The latest tribunal concluded that the factors pointing towards employment were outweighed by the factors pointing in the direction of a self-employment relationship and reflected that the BBC did not treat Ms Adams as an employee in any way.
Much was made at the tribunal about time commitments, which the tribunal considered, and commented that whilst the degree of commitment pointed towards employment, there was still a meaningful amount of working time available for her other engagements. The comment aligned with HMRC’s counsel during the hearing when Tolley KC stated: “As I say, I do not want you to get the wrong impression and that there is any magic in percentages in terms of income or time. There is no hard and fast rule about where the line ought to be drawn.”
Whilst the tribunal considered the rights of control over Ms Adams were significant, that was still outweighed by all the other factors.
Dave Chaplin, CEO of IR35 tax advisory firm IR35 Shield, who has been supporting Ms Adams with her case since January 2019 and has assisted at all four hearings, said: “Kaye Adams is not a tax avoider; she is a victim of HMRC’s intransigence and has been used as a pawn in HMRC’s policy game to try and force media freelancers onto payroll. Regrettably, she has had to pay for HMRC’s expensive strategy that was never really about her. The media sector should thank her for staying the course and not buckling under the immense pressure she endured from HMRC’s litigators.
“Questions should also be raised as to why HMRC spent an estimated £250,000 to chase £70,000. It doesn’t make sense. HMRC has relentlessly pursued Ms Adams, using the taxpayers’ purse. In my view, it was never in doubt that Ms Adams was in business on her own account and not a BBC employee. Multiple judges across multiple hearings have told HMRC that, and HMRC should now leave her alone and reflect on why they got it so repeatedly wrong.
“After HMRC’s failures on their main grounds at the Court of Appeal, HMRC appeared desperate to win the case. No one fields three barristers at a first-tier hearing to win a £70,000 case. The attempts to adjourn the hearing spoke volumes, and the sheer pettiness of HMRC’s argument over the transcripts was startling. As for HMRC trying to use her father’s hospitalisation to argue her available working time was reduced, readers can form their own views.
“HMRC has 56 days to appeal, but after four hearings, I suggest it is time to concede and stop wasting taxpayers’ money. The only next step HMRC needs to take is to apologise profusely for wrongly pursuing an innocent freelancer.”
On 21 February 2022, HMRC told Parliament: “If we were to lose that case [Atholl House] – I do think it has some wider implications in terms of, especially, those who are portfolio earners.” There are four other IR35 cases that HMRC lost at the First-tier tax tribunal, which are lined up to be heard at the Upper-tier, which involve portfolio workers.
Chaplin suggests: “HMRC may need to reflect on the Atholl House outcome, and re-run the necessary checks and balances in their Litigation and Settlement Strategy, to establish whether the cases still warrant further spending from the taxpayers’ purse.”
In a statement released exclusively to ContractorCalculator, Kaye 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.
“I accept that HMRC has a duty to ensure that everyone pays the correct tax, and I wholeheartedly support it in that endeavour. To that end, I have fully cooperated with this inquiry for nearly a decade. However, this is the third court which has concluded that I am a self-employed individual, and HMRC has not once proven otherwise.”
“I was 51 when this all began, and now, at the age of 60, I would really like to be released from my financial limbo and be able to plan for my future. Having scored a hat-trick of wins, I would politely request that HMRC accepts the emphatic judgment of our courts and desists from appealing yet again.
“There are hundreds of thousands of self-employed freelancers like me in the country. If IR35 is deemed too problematic to apply, it is surely time for HMRC to work with our legislators to address the flaws rather than picking off decent, hard-working, law-abiding people one by one in the hope that others will buckle under the pressure.”
Read more:
Presenter Kaye Adams wins IR35 case against HMRC after 9-year ordeal