Loose Woman Adams case again highlights faults in IR35 legislation

Presenter and journalist Kaye Adams has won an IR35 Tribunal appeal case against HM Revenue & Customs.

According to court documents, Adams, a panellist on ITV’s Loose Women and former panellist on Channel 5’s The Wright Stuff, successfully appealed a challenge to her self-employed status under IR35 rules covering her engagement with BBC Radio Scotland as presenter of The Kaye Adams Programme in the tax years ending 5 April 2016 and 5 April 2017, appealing a £124k tax bill.

Last month, Recruiter reported about TV presenter Lorraine Kelly’s successful appeal of a £1.2m tax bill for engagements with ITV breakfast programmes.

As with Kelly’s case, control was the determining key factor in the judge’s ruling.

Dave Chaplin, CEO and founder of contracting authority ContractorCalculator, who attended the hearing, said: “The BBC certainly had ultimate right of control over the content that was created, but not over how the content was created. In his evidence, I heard a BBC witness say that ‘Kaye calls the shots’; she would draft the scripts for the programme, decide which callers to take, what questions to ask, and the direction that the show would follow. All of these things were up to Adams’ discretion while the show was being aired.

“There has been much media discourse surrounding a number of presenters of late who have been wrongly portrayed as deemed employees, which this judgement once again serves to refute. The truth is that, once again, HMRC has wrongly pursued people in its quest to collect additional taxes from individuals which HMRC labels ‘deemed employees’ and subjected them to years of uncertainty and stress, threatening their livelihoods and way of working. HMRC needs to stop harassing the self-employed with this ridiculous piece of legislation and finally admit that it has spent 20 years chasing ghosts.”

Also commenting on the case, Seb Maley, CEO of contractor insurance provider Qdos, said: “Here we have yet another IR35 case in which HMRC has wrongly pursued a genuine contractor for what it believes is thousands in missing tax. Worryingly, this is becoming common practice.

“How many more genuinely self-employed freelancers and contractors must needlessly endure an IR35 case before an independent review into HMRC is launched? You certainly start to wonder when and if HMRC will be held accountable.

“It is, of course, concerning that HMRC can’t seem to grasp the very legislation it designed and attempts to police. With further reform on the horizon, this case emphasises the importance of being confident in IR35 status, irrespective of whether you’re a contractor, an agency or end-client.”

Meanwhile Julia Kermode, CEO of trade body The Freelancer & Contractor Services Association (FCSA), said: “Kaye Adams is clearly a freelancer and has been working for a number of media outlets for the past 20 years – inarguably she is in business in her own right. HMRC pursued the case on the basis of editorial control that was contractually held by the BBC, although in practice Adams was in control of her own work.

“This case demonstrates that HMRC’s approach, fixating on just one element of IR35, is flawed and that the bigger picture of someone’s employment status must be considered as a whole to reach a definitive conclusion. The fact that HMRC continues to lose such cases surely demonstrates that it does not understand its own legislation.

“This is no comfort at all as businesses prepare for the Off-Payroll reforms to reach the private sector in April 2020, when companies will be required to assess the IR35 status of the freelancers and contractors they hire, something that HMRC’s ‘experts’ themselves seem incapable of doing with any accuracy.”

When contacted by Recruiter, an HMRC spokesperson said: “We are disappointed that the First Tier Tribunal has decided that the intermediary rules (also known as IR35) did not apply in this case.

“We will carefully consider the outcome of the tribunal before deciding whether to appeal.”

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