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In HMRC v Kickabout Productions [2020] UKUT 0216, the Upper Tribunal (UT) allowed HMRC’s IR35 appeal finding that a radio presenter was an employee. TalkSPORT was obliged to provide work and this outweighed all other factors of employment status.

The First Tier Tribunal (FTT) narrowly decided that for the purposes of the hypothetical employment contract requirement of IR35, Mr Hawksbee would not have been an employee of TalkSPORT. In the context of two separate contracts they considered mutuality of obligation and control and concluded that there was:

HMRC was given leave to appeal to the UT on the basis that the FTT had erred in law when they decided that the contracts contained no obligation for TalkSPORT to provide work. As this was highly material to their overall decision the UT could exercise its power to set aside the decision and remake it.

On appeal the UT concluded that the contracts were materially similar and:

Most of the recent IR35 cases have been FTT decisions which have no legal precedent. The other recent UT case involving a presenter, Christa Ackroyd Media v HMRC UKUT0326 also resulted in the decision that the taxpayer was an employee.

Links

Off-Payroll Working: At a glance
The new rules for IR35 and personal service companies from April 2020

Employment status
The employment status of an individual worker depends on whether the individual is engaged by the engager under a "contract of service", or a "contract for services". 

IR35: Off-Payroll Working
What is IR35? How does it work? How is the deemed payment calculated? What expenses are deductible?

Employment status: Mutuality of obligation
What is mutuality of obligation? Why is it important in considering employment status?

Personal Service Company (PSC) tax
PSCs are subject to close scrutiny by HMRC and government as there is a wide-ranging belief that many PSCs do not operate the IR35 rules correctly.

External link

HMRC v Kickabout Productions [2020] UKUT 0216