The Upper Tribunal confirmed a 2020 First Tier Tribunal (FTT) that deemed Eamonn Holmes should have been operating inside IR35 when presenting ITV’s flagship morning programme from 2011 to 2015. (See: IR35: Eamonn Holmes’ tax tribunal defeat - Shout99, Feb 2020.
The Upper Tribunal Judge placed emphasis on “sufficient framework of control” exercised by ITV the relationship, The Tribunal said: "we are satisfied that the FTT did properly direct itself as to the question of control..........we do not detect any error of law in the approach of the FTT to the question of control."
Mr Holmes operated through his company, Red White and Green Ltd, through a series of annual contracts with ITV.
Last year, Holmes called HMRC the 'department of thievery', accusing them of 'ruthlessly' pursuing freelancers and contractors.
Qdos - 'a challenge'
Tax specialists, Qdos Contractor examined where the case was won and lost.
Qdos said: "In the Upper Tribunal, Holmes contested that 'the FTT erred in law in relation to control by failing to distinguish' between ITV’s editorial control and control over a worker.
"The fine line between editorial control – which is regulated by Ofcom – and control over how the work is performed is a contentious area for freelance TV presenters specifically, though not for the contractor population at large.
"Holmes’s defence argued on the grounds that, in several elements of the presenter’s working relationship with ITV, he had 'considerable autonomy' in how he worked, '“bringing his own stamp and interpretation' to the role.
"And while Holmes informed ITV of any other client work, he 'did not seek permission from ITV in relation to his other commercial activities'. Nor did ITV 'regard him as requiring their permission'. Indeed, Holmes had other engagements across a range of broadcast media at the time.
"However, these grounds were all rejected at the Upper Tribunal. The tribunal judge deemed Holmes subject to control, citing previous case law which found that regulatory control, including editorial, 'was a relevant factor in considering the sufficiency of control'.
"Alongside this, the case notes reference that the contract between Holmes and ITV 'was for personal service by Mr Holmes and there was no provision for him to provide a substitute presenter'.
"Again this is a challenge, particularly for freelance presenters, if not typical contractors."
This case bucks the trend of recent high-profile battles between TV presenters and HMRC. Lorraine Kelly, Adrian Chiles and most recently Gary Lineker, who were all subject to lengthy IR35 cases and all successfully defeated HMRC. (See: Gary Lineker wins £5 million IR35 fight with taxman - Shout99, Mar 2023).
Further IR35 information
For more information about all aspects of IR35, including other high profile cases see Shout99's News on IR35 section.
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Susie Hughes © Shout99 2023