It has been made public knowledge that approximately 100 current and former BBC presenters are currently under IR35 enquiry. The revelation came during a recent First Tier Tax Tribunal hearing involving BBC news presenters Tim Willcox and Joanna Gosling who operate through their own personal service companies, Tim Willcox Ltd and Paya Ltd.
Willcox and Gosling collectively, are currently the subject of an IR35 investigation covering the period 2006 – 2013, a time before the BBC introduced its own more narrow employment status criteria. However, the pair did become staff in 2014.
The Tribunal hearing, which took place in July of this year, was a precursor to any ultimate hearing regarding the taxpayers’ appeals and concerned the BBC’s application that evidence from BBC witnesses be prepared and submitted to the Tribunal by the BBC’s legal team and not by the witnesses themselves. The BBC would retain control over the evidence given by BBC witnesses. Both the taxpayers and HMRC opposed the BBC’s application, which was upheld by the judge.
Contained within the BBC’s Application to the Tribunal was a statement that divulged that more BBC presenters are under the IR35 microscope:
“HMRC have indicated to the BBC that there are around 100 additional cases under consideration involving current or former BBC presenters. The BBC also understands that HMRC has initiated or indicated their intention to initiate IR35 proceedings in relation to presenters who are engaged by other broadcasting organisations…..The appeals are extremely important not only to the individuals in question but also to the BBC and to the broadcasting industry as a whole. The appeals are likely to be the first cases to test the freelance model in the broadcasting industry against the IR35 legislation.”
The comments regarding non-Beeb presenters is borne out by the writer’s own knowledge of a number of Sky presenters who are currently of interest to the Revenue.
Jennifer Henderson, head of global mobility and employment tax at the BBC, gave evidence in her witness statement that:
“the BBC has learned that HMRC is staying other appeals behind theses ones, thereby giving the impression that these proceedings will be treated as test cases (because they will provide an informal precedent by reference to which the later cases will be adjudicated or settled).”
Whilst Tribunal decisions cannot set legal precedents, it is understandable that the final ruling will be used as heavy artillery in cases to follow, especially where there are distinct similarities in working practices.
Spike in IR35 enquiries
In May 2015 Henderson understood that HMRC were considering 23 cases which then rose to 29 by the end of June. On 29th July 2015, she was told by HMRC that it was in the process of working through a list of 469 PSC’s that had been engaged by the BBC but only 80 enquiries had transpired. By the autumn of that year the number of enquiries rose to 100.
Good – they’ve been making a mockery out of the substitution rules for years and quite frankly deserve everything they get.
Whenever I watch the news I do not know, until the programme starts, which presenter to expect.
To me that suggests interchangeability and hence substitution has occurred.
I would expect the BBC to have a number of presenters available, particularly for live broadcasts, in case individuals are unavailable to work at the specific time.
It is worrying that HMRC are adopting a ranking to the cases to be submitted. It smacks of HMRC both making it up as they go along and also strategically constructing the case law to suit their own ends.
I would hope that the judiciary, for which I have immense respect, see through this construction of connected cases and deal with it as they see fit.
This sequencing should be addressed by the judiciary before any cases are heard, otherwise the judiciary could be seen to be complicit in this perhaps abuse of power.
HMRC should not be able to abuse their position of power to ordain the sequence of cases to be brought. Because the series of defendants do not have access to such power.
Also the successive defendant’s cases are subject to changed law and so the defendant could not possibly have known, at the time of the alleged offense, that their actions were unlawful.
Perhaps, there may other more truthful rankings, the ranking of the cases should be in strict chronological order of when the alleged breach of the law started to occur (ie not detected, nor HMRC ranked as these can be open to abuse).
Also the impact of the earlier case judgement’s impact on the successive cases needs to addressed, to mitigate the successive judgements.
It does not seem just that a defendant should be tried (inflexibly) based on case law that was defined days prior, when their alleged offense occurred years earlier.
No fan of the Beeb or most of its presenters but I resent hector and its arbitrary approach even more.
ROS isn’t the only relevant factor. Hope hector gets a good kicking.