The presenter, Eamonn Holmes has lost his tax case at the Upper Tribunal (UT) that has found that he was indeed an employee of the ITV television group.

Mr Holmes had contended that he was self-employed, as is common for people working within the entertainment industry, and that using a personal services company was a legitimate tax reduction approach.  HMRC disagreed and issued assessments on Mr Holmes’ personal service company, Red White and Green Limited (RWG), for underpaid income tax and national insurance contributions holding that the intermediaries legislation, also known as IR35, applied.

The case had already been heard at the First-tier Tribunal (FTT) that had found in favour of HMRC but RWG appealed to the UT on a couple of grounds.  The first ground was that the FTT had erred when considered the necessary control framework that ITV held over Mr Holmes.  The second ground was that the FTT had erred by presuming an assumed contract of employment would arise due to their findings of sufficient mutuality of obligations and a sufficient framework of control and hadn’t considered the whole picture of the assumed contract from the accumulation of detail as is required under case law.

Mr Holmes’ representative tried to argue that the most important factor is assessing a sufficient control framework was ‘what’ was to be done since Mr Holmes presented in his own style and decided how programs would unfold.  The UT disagreed holding that the ‘how, when and where’ of what had to be done were also relevant factors that the FTT had rightly considered.  The UT could find no error of law at the FTT that warranted it interfering with its decision on a sufficient control framework.

The UT also dismissed the second ground of appeal being that the FTT hadn’t built an accumulated picture of detail from all the facts of the case and had placed too much reliance on the findings that mutuality of obligations and a sufficient control framework existed.  The UT found that the FTT had indeed built a detailed picture from the accumulation of facts but had decided that overall the relationship between ITV and Mr Holmes was one of employer and employee respectively.

The decision can be found at: Red White and Green Limited v The Commissioners for HM Revenue and Customs [2023] UKUT 00083 (TCC) – GOV.UK (www.gov.uk)

This case highlights that it is indeed possible for employment relationships to arise in situations where it is typical for people to work on a freelance basis with short length contracts.  It was held during the case the fact that the contracts had to be frequently negotiated pointed to self-employment but many other factors pointed to employment.

Please contact if you have any questions on IR35 and whether particular arrangements are employment or self-employment.  We are experienced with negotiating with HMRC and finding the dividing line between employment and self-employment.