One day, two IR35 cases decided by the Court of Appeal (CoA)!  This isn’t surprising, the CoA was made up of the same judges for both cases.  Our analysis on the other case, also about a radio presenter, can be found here.

This case concerned the presenter services of Mr Paul Hawksbee (the taxpayer) who provided, by way of his personal services company Kickback Productions Limited (KP), weekday radio shows to Talksport Radio (Talksport).

At the First-tier Tribunal (FTT) it had been held that the contracts concluded between KP and Talksport didn’t require Talksport to provide KP with further work, that there was not mutuality of obligation on Talksport’s side to provide shows to KP.  Therefore, the contracts didn’t pass one of the hurdles to become employment contracts.  The FTT held that the taxpayer was self-employed.

HMRC appealed the decision to the Upper Tribunal (UT) who found in favour of HMRC, holding that on the correct construction of the contracts that Talksport did indeed have an obligation to provide shows to the taxpayer, that Talksport had a sufficient amount of control over the shows and that the control matter could form part of the overall analysis of whether an employment contract existed.  The UT ruled that the taxpayer was not self-employed by remaking the FTT’s decision, as this power is within its discretion.

KP appealed to the CoA but has been unsuccessful.  The CoA ruled that the UT had been correct in its construction of the contracts and had not erred in law.  It also found that the UT had applied the correct test to the control issue and had correctly given some weight to it when considering the overall picture of the relationship between the parties when concluding the contracts.  The CoA found that the in remaking the decision the UT had correctly balanced the information available to it with the efficient delivery of justice.  The UT had sufficient information available to it and this information wasn’t contested.  It was only a question of contract construction, and the UT was well placed to make this analysis.

The decision can be found at: Kickabout Production Limited v The Commissioners for HMRC – Find case law (nationalarchives.gov.uk)

Helpfully, this case has concluded far more quickly that the other case decided by the CoA yesterday, unless the taxpayer appeals to the Supreme Court.  The other case will be remitted back to UT for further consideration, delaying the resolution of that case but we look forward to how the UT will eventually decide it.

Please let us know if you have any questions around the determination contracts and whether they would be self-employment contracts or employment contracts.  The penalties for operating a contract as a self-employment where it is considered an employment contract can be quite considerable.