Contracting authority ContractorCalculator has today learned that broadcaster and presenter Kaye Adams has defeated HMRC in yet another high profile IR35 tribunal case, prompting further questions over the taxman’s competency and the expenditure of tens of thousands of pounds of taxpayer money on ill-considered IR35 cases.
Adams successfully appealed a challenge to her self-employed status under the IR35 rules that covered an engagement with the BBC as presenter of ‘The Kaye Adams Programme’ during the 2015/16 and 2016/17 tax years. Adams is best known for her regular appearances on ITV’s ‘Loose Women’ and ‘Paper Review’ on Sky News, in addition to writing regular columns for various newspapers and magazines. These roles were central to the outcome, proving that Adams was clearly in business on her own account, working for many different media outlets.
Having attended the hearing, Dave Chaplin, CEO and founder of ContractorCalculator said, “There has been much media discourse surrounding a number of presenters of late who have been wrongly portrayed as deemed employees, which this judgment once again serves to refute.
“The truth is that, once again, HMRC has wrongly pursued people in its quest to collect additional taxes from individuals which HMRC labels “deemed employees” and subjected them to years of uncertainty and stress, threatening their livelihoods and way of working. HMRC needs to stop harassing the self-employed with this ridiculous piece of legislation and finally admit that it has spent 20 years chasing ghosts.”
Speaking briefly to ContractorCalculator after the tribunal, Adams said: “I don’t understand why HMRC spent so much money and effort trying to claim I was an employee of the BBC, when I’ve been a freelancer for 20-years.”
Chaplin added, “What’s more galling is that Adams was tried under the original IR35 rules, which were unfairly designed to make individuals pick up the employers National Insurance tax bill which is normally paid by hiring firms. After the rule change in April 2017 for the public sector, that is no longer the case, so HMRC were perversely pursuing her under rules which no longer even apply.
“These frivolous pursuits by HMRC are wasting vast sums of taxpayer’s money, which in this case I would estimate would cover less than half its own legal costs.
“It also demonstrates the taxman’s flawed and blinkered interpretation of employment status; in this case, the importance of considering the bigger picture was reaffirmed, as the many engagements that Adams carried out alongside her BBC work proved critical to the outcome. All her roles were clear indicators that Adams was largely in control of her work.
“The BBC certainly had ultimate right of control over the content that was created, but not over how the content was created. In his evidence, I heard a BBC witness say that “Kaye calls the shots”; she would draft the scripts for the programme, decide which callers to take, what questions to ask, and the direction that the show would follow. All of these things were up to Adams’ discretion while the show was being aired.
“Furthermore, we put the case through HMRC’s Check Employment Status for Tax (CEST) tool, and despite it being clearly not caught by the rules, CEST confirmed “unable to determine”. That’s the last two cases that have been won by tax payers where CEST has indicated otherwise.
“This judgment reaffirms the importance of looking beyond the contract and examining things holistically, including all the details pertaining to the individual. This is something which HMRC failed to do, and which CEST fails to account for, having been built based on the taxman’s flawed interpretation of IR35. How can HMRC expect to sufficiently educate the private sector on how to apply the Off-Payroll rules come April 2020, when it clearly cannot navigate the legislation itself?”