In Atholl House Productions Limited v HMRC  TC07088 the FTT found that TV presenter Kay Adams was not subject to IR35; she was an independent provider of services carrying on a profession on her own account.
- Where the arrangements between the worker and the end client are such that, if engaged directly, the worker would have been an employee.
- The PSC must treat the amounts received as employment income of the individual and operate PAYE.
Kay Adams was contracted through her PSC, Atholl House Productions Ltd (Atholl )to work for the BBC and other media outlets including ITV and Sky.
- During 2015/16 and 2016/17 she worked for BBC Radio Scotland as a presenter of a weekday show, The Kaye Adams Programme”.
- HMRC assessed Atholl to PAYE and Class 1 NIC totalling £124,442 for the two years and it appealed.
- The relevant contractual agreements provided:
- For a minimum commitment to 160 programmes for a minimum fee of £155,000. The fee could be reduced if she failed to deliver the minimum commitment but not if the BBC failed to schedule that many programmes.
- Her services to the BBC were not exclusive but the BBC had first call on her freelance services.
- She could not appear in any other third party audio or visual content primarily intended for audiences in the UK without the consent of the BBC, such consent not to be unreasonably withheld.
- The BBC’s editorial control of its content was final.
- She was not entitled to holiday or sick pay or maternity leave or a pension.
- Additional evidence showed that Ms Adams:
- Wrote her own scripts and whilst on air, had control over which callers to take, what questions to ask and what direction the show took, plus control of the mike, but other team members could make suggestions.
- Had not fulfilled the Minimum Commitment under one of the two agreements and had not been paid a proportionate part of the Minimum Fee under that agreement.
- Was suspended by the BBC for 3 weeks without pay following a politically biased tweet.
- Evidence showed that the BBC never tried to place restrictions on her work for others, it was understood that she would continue to carry on with her other engagements without seeking their permission (and she did so) and the BBC often went out of its way to help her do this by allowing her to present from an alternate location. Parts of the written agreement were not enforced by the BBC such as requiring her to attend editorial training.
The FTT held that each contract was a contract for services not giving rise to a relationship of employer and employee.
- The impression was that Ms Adams carried on a profession on her own account in the same way as the vision mixer in the case of Hall v Lorimer.
- The BBC did not have first call on Ms Adams’s time or any control over her other engagements.
- Whilst only two years of assessment were under consideration it was inappropriate to consider those years and her work with the BBC in isolation. Her work must be considered in the round as part of her whole professional career. This made her BBC work less significant and made her an independent provider of services.
The FTT judge provided a useful summary distinguishing the facts from the Christa Ackroyd Media Limited case to explain why he had reached a different conclusion to the judge in that case, citing the differences as:
- Length of contract: Christa Ackroyd’s contract was 7 years long, Ms Adams had two 1 year contracts.
- Ratio of non-BBC income to BBC income: Ms Ackroyd’s non-BBC income was de minimis, Ms Adams’ was not, at 30-50% of gross income.
- Ms Ackroyd was given a clothing allowance, Ms Adams was not.
- The BBC had first call on Ms Ackroyd’s time, she attended BBC training sessions and could be told by the BBC who to interview. None of this applied to Ms Adams.
- Ms Ackroyd had to obtain the BBC's consent to non-BBC engagements; despite the terms of the written agreements, each actual agreement with Ms Adams did not require the BBC’s consent to other engagements.
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