• TalkSPORT presenter wins unusual IR35 case

    TalkSPORT presenter Paul Hawksbee has won his IR35 case against HMRC over a £140,000 tax bill. He argued that he has a high level of autonomy as he writes his own jokes.

    The broadcaster has been co-presenting the Hawksbee and Jacobs Show for nearly 20 years alongside Andy Jacobs. During that time, about 90 per cent of Hawksbee’s total income came from TalkSPORT. HMRC argued that this meant that Hawksbee was therefore effectively an employee of TalkSPORT, liable for employee tax such as Income Tax and National Insurance Contributions.

    Hawksbee argued that the ‘artistic freedom’ he has over the show, such as picking his own guests and writing his own jokes, means that he is self-employed.

    Unusually, rather than reject HMRC completely, as has happened in five of the last six IR35 cases, the tax tribunal could not decide a verdict. Therefore, Judge Thomas Scott used his casting vote to declare Paul Hawksbee successful in his appeal.

    Yesterday, a HMRC spokesperson told ContractorUK that it is “disappointed” with the ruling and is considering appealing the decision.

    What is IR35?
    IR35, also known as ‘intermediaries legislation’, or ‘off-payroll working legislation’, is tax legislation which seeks to ensure no tax advantage is gained by disguising employment as self-employment.

    The broadcaster argued that his work on TalkSPORT was “just one string in his bow”, and that he sees himself mainly as an independent comedy writer. Hawksbee also writes for all episodes of Harry Hill’s TV Burp, and has worked for the BBC, ITV and other broadcasters.

    Freedom to make his own jokes

    Handing the victory to Hawksbee, Judge Scott said Hawksbee, alongside his co-presenter Jacobs, had the “freedom to decide on the format and content of each show and, subject to availability, the guests for each show”. He added that TalkSPORT had no control over what was said on air.

    Unlike employees, Hawksbee gets no holiday or sick pay, pension, or paternity leave. He also does not receive a salary or retainer, but instead receives a fee for each show.

    How is IR35 decided?
    Does the engagement look and feel like employment? If it does, it is more likely IR35 will apply. To help them understand what ‘looking and feeling like employment’ really means, the courts have come up with three main factors to consider…
    Click Here
    Personal service/ substitution
    Are you required to carry out the work yourself, or you can you send a substitute to do it in your place? Employees cannot send a substitute, so being required to offer personal services points towards IR35.
    Click Here
    Supervision, Direction, and Control
    What degree of supervision, direction and control does your client have over what you do? Do they tell you how to do the work? Employees are controlled by their employer, so the existence of control points towards IR35.
    Click Here
    Mutuality of obligation (MOO)
    Is your client obliged to offer you work beyond the agreed project? Employees and employers have mutual obligations, so the presence of MOO points to IR35.
    Click Here
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    When declaring Hawksbee successful in his appeal, Judge Scott said that although he is “synonymous with the show”, this does not make him “part and parcel” of the radio station as a whole.

    Concluding with his decisive vote in this tribunal, Judge Scott said: “The relationship in this case was not one of employment.”

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