Ex Sky Sports presenter loses IR35 appeal at First Tier Tribunal
Dave Clark, who stepped down from his role as a presenter of Sky Sports’ darts coverage in July last year, is facing a £281,000 IR35 bill after losing his appeal.
The First Tier Tribunal ruled that the contracts held between Clark’s limited company, Little Piece of Paradise Limited, and Sky from 2013 to 2018, were inside the scope of IR35. As a result, Clark will be expected to repay HMRC missing income tax and national insurance contributions for the period in question.
Tribunal judge Heidi Poon said the broadcaster should have been a Sky employee and paid directly instead of pay being passed through his limited company.
Tribunal found existence of MOO
The tribunal found that the relationship between the presenter and Sky could be classed as a contract of service, largely due to the existence of mutuality of obligation.
Clark received £150,000 per year in return for covering darts events as and when required. This fee was split into 12 monthly payments, which remained the same irrespective of whether the presenter worked overtime or less than what was contractually agreed.
Responding to the judgement, Matt Fryer, head of legal services at Brookson Legal, said that Clarke is another victim of HMRC’s efforts to target freelance broadcasters who it believes are not IR35 compliant.
Sky controlled Clark’s services
This ruling, Fryer explained, was also based on the level of control Sky had over the days Clark worked, the events covered (including the dates and locations) as well as how the services were delivered, which was “subject to the direction of Sky’s production team.”
“Whilst it was accepted by the tribunal that Mr Clark autonomously prepared for events, carried this out in his own time and in his own studio, […] this autonomy was controlled by regulatory guidelines, Sky guidelines and Sky production team direction”, he said.
“The tribunal concluded that the control over what services Mr Clark provided (or in the case of the restrictions, NDA, non-solicitation and non-compete provisions, control over what services Mr Clark could not provide) outweighed the control over how.
“This demonstrates that even where a client is paying for a person’s expertise and knowledge it does not mean they are not controlled by the client.”
HMRC’s IR35 win mustn’t dissuade firms from engaging contractors
Seb Maley, CEO at Qdos, said that while concerning, victory for the taxman mustn’t deter businesses from engaging contractors.
He said: “A high profile victory for HMRC may concern contractors and businesses, but the fact of the matter is that Clark’s working relationship with Sky – like many other presenters – was quite different to ones held by typical contractors. It’s also possible that Clark may appeal the case again and overturn this decision.
“This result shouldn’t dissuade businesses from engaging contractors, the vast majority of whom – in our experience – are truly self-employed. For example, 87 per cent of more than 30,000 contractors we have rigorously assessed on behalf of businesses belong, in our expert opinion, outside IR35.”
This legislation is arbitrary and cruel, and has no place in a civilised society. We can only hope that the results of the upcoming review are not completely ignored again by our ridiculous government.
It basically amounts to “how do we make it up as we go along while we politicians, bureaucrats etc. take advantage of it ourselves…”
Utter load of tosh is what it is. As you say, very arbitrary.
Greedy bastard. Hope they throw the book at him
Nice try Hector. Is that all you have by way of an argument?
Populism is dying by way of a long waiting list for healthcare.
It’s what you voted.
How would this be different if Dave Clark had been assigned to Sky from a large consultancy firm under the same conditions?
I’ll tell you how, the case would never have been brought (why not?) and the offshore shareholders of said consultancy would have pocketed the lion’s share of the proceeds, tax free. Dave Clark would have been paid a small salary which he would have paid small tax on.
Telling that Rishi Sunak’s family owns Infosys, one of the largest offshore IT outsourcing firms to benefit from his disruptor IR35 legislation.
Tory corruption at its worst? Forget bribes and stealing public money with phoney contracts. He’s passing laws that shut down hundreds of thousands of British tax paying companies solely for the benefit of offshore interests.
Gary Andrews, yes/no/maybe.
If the large consultancy firm had been paying Dave Clark a reasonable whack then that would have been after income tax and national insurance.
So there is no IR35 issue.
However you are spot on about shareholders pocketing their share after a much lower tax rate.
The whole IR35 debacle would have been avoided if tax on dividends had kept pace with the effective tax on salaries (i.e. income tax plus NI employer and employee).
When I were a lad there was an unearned income surcharge – so dividends were taxed at a higher rate.
Andrew Harrison – sorry, you miss the key point.
The tax on dividends HAS kept pace – the initial income tax is not the end of the matter. When the individual files a tax return, HMRC extrapolate a gross salary and send a demand for the difference.
There is not – and has never been – any income tax differential to paying dividends. It’s media ignorance and hype (they think it sells papers to encourage the green-eyed monster).
True, the minor part of the contract paid to Dave Clark as wages would be due for PAYE as for everyone. But the greater part, the profit can be structured as dividends and deduct expenses by a large outsourcer.
Why should this be and where is the line that shelters a large company from these rules in law? Surely they could send along disguised employees like anyone else and have that whole invoice subject to IR35?
All things being equal the outsourcer will not ever need to justify their position because they won’t be bothered by the revenue. Not because it’s written in law.
This is getting daft. So if I contract a builder to build a kitchen, he should build me a shed instead? Otherwise it would be seen by HMRC that I have ‘control’ over the services they provide?
In EVERY contract there is agreement between the client and the supplier on what those services might be. That is called ‘doing business’ and nothing to do with ‘control’ by the client IMHO
The whole IR35 debacle is not about collecting more revenue (neither by intention nor by result) – it’s about keeping the population compliant, and there is no better way to do that than everyone wedded to employment in large companies. You’ll find people way more likely to keep schtum when their working practice is completely out of their control.
Why does this ‘f#ck business’ government hate small contractors so much?
Because they are in the pocket of the big contractors.
Where is the Government’s Anti-Corruption ‘Champion’?