TV Presenter Eamonn Holmes Loses IR35 Tax Appeal

TV presenter Mr. Eamonn Holmes lost his IR35 tax appeal against HMRC in the first tier tribunal (FTT) despite working 40 years as a freelancer broadcaster. The decision came out for the case which is concerned with Mr Eamonn Holmes personal Service Company named Red, White and Green Ltd. (RWG) which he incorporated in 2001. Later in 2006, Mr Holmes became a part of “This morning” show which he presented for about 15 years. Mr Holmes failed in his appeal due to the four engagements between his limited company “Real, White & Green Limited” & “ITV” during 2011/12 & 2014-15 tax years’ results in failing of proving his employment status as a self-employed person.

Tribunal judge “Mr. Harriot Morgan” dismisses the appeal made by Mr Holmes & concluded that “there was sufficient mutuality of obligation and at least a sufficient framework of control to place the assumed relationship between ITV & Mr. Holmes in the employment field”. There were 4 contracts signed between the broadcaster & Mr Holmes during that period. As per the terms and conditions specified in the contract, RWG needed to obtain services from Mr Holmes on an exclusive basis within the period or dates specified and agreed with the executive producer.

The specified dates included the following

• List of Fridays (Except Fridays coming in July & August)
• Monday to Thursday (Other weeks)

TV Presenter Mr. Holme’s interpretation

• Mr Holme’s said that he is working as a journalist and broadcaster from last 4 decades and was more occupied with sky news between 2011 & 2015 than in presenting the “This morning” show.
• He also said that he carried out many other projects as a self-employed individual.
• Mr Holmes told the tribunal that he performs a role of an anchor as he had been hired by ITV as an individualist because of the skills and expertise he possesses in the field of anchoring.
• He also said that the show was in his total control whenever it goes on air.
• He also pointed out that there is no sick leave paid to him even at the time of double hip replacement in 2016, not even a single holiday leave.

Also Read: What is IR35?

What Holme’s lawyer “Mr. Robert Maas” says?

Mr Holme’s lawyer Mr. Robert Maas argued in the tribunal on the following points –

• Mr Maas said that Mr Holmes doesn’t receive any employment benefits such as holidays, pension, sick pay or training unlike ITV employees.
• He also said that Mr. Holmes carried out many activities/projects under his own name & should be considered as genuinely self-employed person. He even pays tax as self-employed person too.
• Mr Holme’s lawyer said that one more thing which describes him as a self-employed person is fees. Rather than paying a salary, ITV was paying fees to RWG which establishes his status as a self-employed person.

HMRC’s reaction on Judgement

HMRC welcomes the decision taken by Mr. Judge Harriot Morgan and praises themselves in taking the right approach. HMRC said that as per the tax rules, employment taxes should be paid even when a person works through their own company.

Judge “Mr. Harriot Morgan” Judgement

Judge Harriot Morgan concluded the case on the basis of the following points mentioned below –

• Judge Harriot Morgan stated that I cannot see provision of any enhanced benefits in excess of minimum statutory benefits under the principles laid down in case law. This proves it to be an integral part of employment relationship.
• It doesn’t mean that if the employer doesn’t provide employment benefits, it is not an employment relationship, as we have to see the legal rights and obligations of the parties too.

• Judge Morgan also said that as per the contract, there are many other additional benefits provided to Mr Holmes except fees which are as follows –

  1. Clothing allowance of £5,000
  2. Expenses for travel and accommodation for few trips
  3. Car for travelling to studio
• There was sufficient mutuality of obligation and framework of control to place the assumed relationship between ITV and Mr. Holmes in the employment field.
• Specified dates are provided to Mr Holmes along with the fixed fees on which he needs to work for the fees.
• Judge finally stated that after considering all the factors, we arrived at a decision that the relationship between ITV and Mr. Holmes is of employment rather than self-employment.

Also Read: IR35 Compliance

Conclusion

Out of the 8 presenters, 5 presenters have already lost their cases against HMRC. Lorraine Kelly and Helen Fospero are the only two presenters who have successfully defended their case and are in the winning league. After working as a freelancer for many broadcasting companies from last 4 decades, it’s surprising to hear that Mr Holmes lost his case and found himself within IR35 tax rules & regulations.

Although the broadcaster cases have been similar, the decision taken by Mr. Judge Harriot Morgan is different then the approach taken in other cases. We are unable to grasp this as it’s difficult to understand why similar rules have not been applied to other presenters in the prior cases. Many of these cases are forwarding to upper tribunals – Let’s see whether it will provide some more clarity in the law or remain as the part of legislation which no one properly understands.

About the author

Sumit Agarwal
Sumit Agarwal (ACMA ACA India), the Managing partner of dns accountants is a highly respected accountant with expertise in helping owner-managed businesses.