Tax Tribunal confirms TV presenter’s IR35 assessments
Tax Tribunal confirms TV presenter’s IR35 assessments
The First-tier Tax Tribunal has decided that TV Presenter Christa Ackroyd was a disguised employee of the BBC in relation to her company’s contract with the corporation between 2006 and 2013.
This is the first ‘proper’ IR35 case since way back in 2011 (ignoring the Big Bad Wolff case last year which involved a technical deeming provision rather than disguised employment in the usual sense). However, there may now be a flurry of other IR35 cases as the Tribunal noted that Ms Ackroyd’s case was “one of a number of other appeals involving television presenters and personal service companies”. However, this is not a lead case setting a binding precedent, and, being highly fact-sensitive, other cases may of course have a different outcome.
Many people will know Christa Ackroyd from BBC’s “Look North” programme, which she presented with her co-presenter Harry Gration between 2001 and 2013. That role came to an abrupt and high profile end amid a flurry of media reports that she was a “tax cheat” – a sensationalist headline now scotched by this judgment which acknowledges that, whilst caught by IR35, there was no suggestion that she had acted dishonestly.
Background
Ms Ackroyd contracted with the BBC through her personal service company, CAM Ltd from the outset of her relationship. Following an IR35 investigation, HMRC raised assessments covering the period 2006/2007 to 2012/2013 totalling £419,151. These assessments apparently do not allow for various set-offs available, for example in relation to corporation tax paid, and CAM Ltd asserted that the true liability is around £207,000. However, the FTT did not determine this point, making a decision on the applicability of IR35 in principle and allowing the parties an opportunity to agree the true quantum between themselves. There were also minor ancillary issues regarding expenses deductions and suspended penalties under appeal.
These assessments were not issued until March 2013 and October 2014, and it has taken almost a further five years to conclude the dispute before the Tribunal – assuming that there is no further appeal. This goes to underline how complex and drawn out employment status and IR35 disputes can become.
Facts
Being based on the long-standing employment status tests developed by the Courts over the years, IR35 disputes are highly fact-sensitive. Notably, the burden of proving facts generally rests with the appellant, CAM Ltd in this case. This becomes important when there are disputes or, as is common when an overall impression is being argued for in a status case, multiple interpretations of different scenarios. The Tribunal in this case observed that Ms Ackroyd’s evidence focussed on the aspects more helpful to her case, and although she criticised HMRC for failing to interview various witnesses who could corroborate her version of events, she apparently failed to call those witnesses herself to give evidence to the Tribunal.
The job of the Tribunal is to construct from the facts of the case a ‘hypothetical contract’ that would have existed between Ms Ackroyd and the BBC, had she contracted directly and not through a personal service company. The key aspects of this relationship were:
- This was a seven-year contract
- Ms Ackroyd’s personal service was required – there was a specific prohibition on her using a substitute
- The BBC had first call on her services for up to 225 days per year (and would have to pay her in any case), so there was sufficient mutuality of obligation
- Ms Ackroyd was controlled to a sufficient degree to be an employee (see below for more on this)
- There was no holiday pay, or sick pay
- Travel and subsistence expenses would be reimbursed as for freelance contributors
- She received a clothing allowance of £3,000 per year.
- She had no desk, and used her own computer and mobile phone
- Self-billed VAT invoices were raised on her company’s behalf by the BBC
- She was entitled to a bonus of £7,500 every 6 months if Look North’s ratings were better than its commercial rivals
Control
A major focus of argument and enquiry concerned the degree of control over Ms Ackroyd’s services. Ms Ackroyd argued vehemently that she had control over the stories covered and their presentation, including who should be interviewed and whether there should be an outside broadcast. Whilst acknowledging Ms Ackroyd’s skillset and journalistic input as well as the freedoms available to her, and also accepting that she was not contractually bound by the BBC’s Editorial Guidelines, ultimately the Tribunal decided that there was a sufficient right of control on the hypothetical contract to satisfy the employment test. The Tribunal observed that it did not matter whether that right was actually exercised in practice – and by reference to the actual written contracts in place (which stated expressly at Clause 1 that Ms Ackroyd was subject to control of CAM Ltd) and to give the arrangements business efficacy, the Tribunal held that the control test was met.
This point underlines that it is vital to ensure that written contracts are properly drafted and reflect the parties’ intentions. Ms Ackroyd clearly genuinely saw herself as the programme’s architect and argued that she would never have submitted to the BBC’s control in a direct contract. However, this important and arguable point was vastly diminished by a failure to reflect this in the written contract, and ultimately the Tribunal decided against her on this aspect of her appeal.
The business test
Having decided that the fundamental ingredients of employment (personal service, control and mutuality of obligations) are present Tribunals typically go on to consider whether the individual appears to be providing services in business on their own account.
In this regard CAM Ltd was highly restricted in its external activities by the BBC by the terms of the contract, and such ‘exclusivity clauses’ are not typical of business to business contracts. CAM Ltd derived a high proportion of it’s income (96.5% in 2009 and 98% in 2010) from the BBC contract. Moreover once the relationship with the BBC began to sour, Ms Ackroyd made a point of seeking permission for every minor event she undertook on a ‘tongue in cheek’ basis: however this perhaps backfired slightly as the BBC refused permission for her to become President of the Friends of the Bronte Church on the basis that it would breach the BBC’s Editorial Guidelines. The Tribunal observed that this was evidence of the BBC beginning to rely on their strict contractual rights.
As she was economically dependent upon the hypothetical contract, the Tribunal found that she could not be described as being in business on her own account.
Summary
In dismissing her appeal, the Tribunal stated:
- We must consider all the factors above and the relative weight attaching to those factors. In our view the most significant factors in the present case include the fact that the BBC could control what work Ms Ackroyd did pursuant to the hypothetical contract. It was a 7 year contract for what was effectively a full time job. Standing back and making an overall qualitative assessment of the circumstances we consider that Ms Ackroyd was an employee under the hypothetical contract. If the services provided by Ms Ackroyd were provided under a contract directly between the BBC and Ms Ackroyd, then Ms Ackroyd would be regarded for income tax purposes as an employee of the BBC.
- We acknowledge that this is a value judgement. It is in the nature of a value judgement that different people may come to different conclusions. We do not criticise Ms Ackroyd for not realising that the IR35 legislation was engaged. She took professional advice in relation to the contractual arrangements with the BBC and she was encouraged by the BBC to contract through a personal service company.
There are certainly lessons to be learnt from this case. Sometimes the evidence – particularly relating to the right of control – was either conflicting or capable of multiple interpretations, and in such circumstances Tribunals are likely to place more weight on the written contract. Indeed, the Tribunal observed that there was no express term dealing with control by the BBC, and so implied such a term themselves into the hypothetical contract. Had express terms been included, given that a sufficient degree of control is fundamental to an employment contract, the matter may well have been decided differently.
It is important to note that this case does not set any precedent for other cases, including other similar cases involving TV presenters. Just as previous IR35 cases involving IT contractors have resulted in both ‘inside’ and ‘outside’ IR35 decisions over the years, each case is decided on its own facts and, importantly, on the arrangements and the specific contracts in place.