Footballer Baye Oumar Niasse's appeal for a deduction of fees paid to his agent failed at the First Tier Tribunal (FTT). The fees were not deductible under the general employee expense rule nor the special rules for entertainers.
In Baye Pumar Niasse v HMRC [2024] TC09093, the former Premiership footballer appealed against HMRC's refusal to allow a deduction for fees paid to his agent. The outstanding tax on the fees was £76,410 for 2015-16 and £76,463.10 for 2016-17 As a secondary issue, Mr Niasse also appealed against penalty assessments totalling £5,262 for the late filing of his tax returns for each of 2015-16, 2016-17, and 2017-18.
- In November 2015 Mr Niasse was playing at FC Lokomotiv Moscow when he signed a Representation Contract with an agent, Mr Ivo Rita of RX Brothers Limited.
- Consideration for the contract was a 10% commission amounting to 10% of his gross income as a result of any contract negotiated or renegotiated by Mr Rita.
- On 1 February 2016, Mr Niasse joined Everton. Mr Rita represented both parties and all three signed a 'Tripartite Contract'. Separately, Mr Niasse entered a Premier League Contract with Everton until 30 June 2020.
- HMRC issued notices requiring Mr Niasse to submit tax returns for each of 2015-16, 2016-17, and 2017-18. In the continuing absence of submitted returns, HMRC issued various penalty notices.
- Mr Shah was appointed early in 2019 and appealed against the late filing penalties because Mr Niasse was new to the country and unaware of the obligation to file a return, and he had not received notice to file a tax return.
- In March 2019 HMRC responded in two separate letters explaining they could not consider the appeals against the penalties until tax returns for the relevant tax years had been filed; this statement was incorrect.
- Tax returns for 2015-16 and 2016-17 were submitted on 18 April 2019 including the claims for deduction of agent's fees as an expense of the player's employment.
- A third point for grounds to appeal was also added by Mr Shah that the player believed he did not need to file a return as all his earnings were taxed at source under PAYE.
On deductibility under the general employee expense rule, the FTT considered if:
- The employee is obliged to incur and pay the agent's fees as holder of the employment.
- The FTT concluded the duties of Mr Niasse's employment were defined by reference to the Premier League Contract. The payments to Mr Rita were made under the Representation Contract. There was also no evidence the player was required to engage an agent.
- The amount is incurred wholly, exclusively and necessarily in the performance of the duties of the employment.
- Counsel for HMRC argued the player's duties of employment were to play football, not to engage an agent. The FTT agreed. The expenditure incurred in engaging an agent who negotiates/renegotiates contracts of employment secured services not used by the employee in performing his duties of employment.
On deductibility under the special rules for entertainers, the FTT found Mr Naisse was not an entertainer under the terms of the legislation which lists entertainers as an actor, dancers, musicians, singers or theatrical artists.
Finally, the FTT did not find Mr Niasse had a reasonable excuse for the late filing of returns. One of the player's arguments was the notices had not been properly delivered but he provided all of them to Mr Shah once he was appointed to act.
The appeal was dismissed.
Useful guides on this topic
Exemption for paid and reimbursed expenses
What exemptions apply for paid and reimbursed employee expenses? What are the rules?
Annual expenses for employees: How to claim
A guide to explain the different ways employees can claim tax relief for the employment expenses they incur as part of their jobs.
How to appeal an HMRC decision
Disagree with an HMRC decision? How do you appeal, what type of decision can you appeal and what are your different options when you disagree with HMRC? What are the key steps in making an appeal?
Grounds for Appeal: Reasonable excuse
What is considered to be a 'reasonable excuse' when a taxpayer makes an appeal against a tax compliance failure?
Discovery Assessments
When can HMRC issue an assessment outside of the normal statutory time limits? What conditions must be met? Can HMRC issue two alternative assessments for the same period? What are your rights of appeal and defences?
External link
Baye Oumar Niasse v HMRC [2024] TC09093
