Devereux members represent HMRC and the taxpayer in IR35 case
The latest word on IR35 and employment status to emerge from the tax tribunals was an all-Devereux affair. In HMRC v Kickabout Productions Limited, Christopher Stone and Marianne Tutin represented HMRC and Georgia Hicks and Harry Sheehan represented the taxpayer, which is the personal service company of Talksport radio presenter and comedy script writer Paul Hawksbee.
The FTT had decided that IR35 did not apply to the arrangements entered into between Talksport and Kickabout for the provision of Mr Hawksbee’s services as a co-presenter of the daily Hawksbee & Jacob show. The Upper Tribunal (Zacaroli J and Upper Tribunal Judge Richards) allowed HMRC’s appeal on the basis that the FTT had erred when construing the obligations within the contracts between Talksport and Kickabout. It found that the contracts, which contained an express obligation for Mr Hawksbee to work for 222 days per year, also contained an obligation on Talksport to make that work available.
Rather than remit the matter, the Upper Tribunal decided for itself whether IR35 applied. In concluding that it did, the Upper Tribunal considered issues common to many IR35 assessments including: the relevance of the scope of the engagement being narrowly defined; and the relevance of the absence of clauses dealing with sick pay and holiday pay.
The decision will therefore be of interest to those considering the application of the new off-payroll regime due to come into force in April 2021. Further appellate guidance will come when the Court of Appeal hears HMRC v Professional Game Match Officials Limited, regarding the employment status of referees (Akash Nawbatt QC and Sebastian Purnell representing HMRC and Georgia Hicks representing the taxpayer); and from further IR35 appeals in the Upper Tribunal (one listed in November 2020 and two yet to be listed, in all of which Devereux counsel will appear).
You can read a full copy of the judgment here.
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