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ITV presenter wins £80k IR35 Tribunal

HMRC loses a second IR35 Tribunal in the space of just one week

With just six months until IR35 reform is extended to the private sector, it emerged last week that television presenter, Helen Fospero, won her IR35 case appeal, resulting in a second IR35 Tribunal loss for HMRC in less than seven days.

Ms Fospero’s victory, which follows IT contractor, Richard Alcock’s £240,000 Tribunal win only a few days earlier, means the presenter will not need to pay the £80,770 in National Insurance Contributions and income tax that HMRC was demanding as a result of working outside of the legislation. 

The contracts examined took place in the 2012/13 and 2013/14 tax years between Ms Fospero’s limited company, Canal Street Productions Limited and ITV, where she often presented on the programmes Daybreak and Lorraine. 

“No mutuality of work-related obligation”

Similar to Mr Alcock’s very recent IR35 victory, Ms Fospero was declared a genuine contractor largely on the grounds that Mutuality of Obligation (MoO) didn’t exist in her engagements with ITV.

Dismissing HMRC’s version of events, Judge Ashley Greenbank explained: “In the period in question, Ms Fospero was engaged, through Canal Street, in a separate business, she worked under a series of short-term engagements for ITV, she had no guarantee of further work outside those engagements and ITV had no obligation to provide any work.”

Mr Greenbank also spoke of there being no “mutuality of work-related obligation” given “Ms Fospero would have no guarantee of work and would be under no obligation to perform work if it was offered.”

CEST’s flaws exposed (once more)

Much like HMRC’s previous IR35 Tribunal defeat, which also hinged on MoO, Ms Fospero’s win exposes the flaws of CEST – the taxman’s IR35 tool – which doesn’t take this key IR35 status test into account, presuming that it’s always present. Qdos CEO, Seb Maley, said: “Because Mutuality of Obligation ultimately didn’t exist”, “HMRC’s IR35 tool isn’t reliable, given it assumes MoO is present in every contractor engagement.”

Multiple engagements aid Fospero’s case

While Ms Fospero appeared regularly on ITV, that she carried out work with other clients was taken into consideration by the Judge, who stated: “It seems to me that the agreements with ITV were just part of that wider business carried on by Ms Fospero through Canal Street, in which Ms Fospero undertook various types of presenting work.”

Importance of IR35 compliance emphasised

Given the news of Ms Fospero’s win broke with only six months to go to private sector reform, IR35 expert, Seb Maley, also outlined the importance of compliance as 6th April 2020 approaches – even though when changes do arrive, contractors will not be responsible for deciding their own tax status unless they work with a ‘small’ private sector company.

Mr Maley said: “Given the tax office’s aggressive nature towards independent workers, contractors need to be confident of their IR35 compliance.”

He then urged private sector firms to get to grips with the legislation: “The fact that the tax office is willing to go the distance in cases that are genuinely outside IR35 should encourage clients and agencies – that will soon become liable for IR35 – to ensure their own compliance well before April 2020.”

Meanwhile, IPSE’s Deputy Director of Policy, Andy Chamberlain expanded on this, making the point that Ms Fospero’s case “raises concerns about its (HMRC’s) credibility and authority to oversee compliance in the private sector. How will businesses be able to trust HMRC’s judgement when it continually loses IR35 Tribunals?”

The tax office is reportedly considering appealing Ms Fospero’s and Mr Alcock’s victories. 

By Contractor Weekly

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6 thoughts on “ITV presenter wins £80k IR35 Tribunal”

  1. HMRCunts

    HMRC are a cancer to society.

    The Gestapo finance wing would have the entire country working for nothing if they could get away with it.

  2. Nantwich Contractor

    With all these cases, what happens afterwards? Can the defendants of these cases claim money back from the Inland revenue for court costs, time and expenses? Particularly when some of these cases should never have been brought in the first place.

  3. Geoff

    HMRC will not care about losing the odd battle, they have won the war with major clients like the big banks and the NHS either banning contractors or putting most inside IR35.

    That was the HMRC objective.

  4. Iftikhar

    I am an IT contractor. I do understand contractors work through limited companies which also gives them tax efficiency benefit (including claiming business expenses).

    There are situations where the contractor becomes a “permanent” contractor.

    I think there should be a special tax code for people in that situation where they do not get the benefits of being on payroll but work same as the permanent staff member.

  5. Andrew Harrison

    HMRC is a collection of people trying to implement legislation. There isn’t enough emphasis on how sprawling and in places poor the legislation is.
    There does seem to be a vindictive and unbalanced sub group driving these IR35 investigations.
    Presumably it makes uninteresting reading to hear about VAT inspectors who make helpful comments or valid investigations where HMRC asked relevant questions and then agreed with the submitted return?
    It would be a shame if these high profile and nasty IR35 investigations tarnished the whole organisation.

  6. BigglesofLondon

    There is a push across all government and financial sectors to tighten the noose around citizens. This is not about money for them, they have it all however it’s to further improvish citizens to remove the middle and upper working classes of financial security. This is no conspiracy theory, these people are corrupt and evil. Think Epstein.

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