04 April 2023 
Julia Ascott, Employment Taxes Specialist
Whilst it may not have been Wagatha Christie, presenters Gary Lineker and Eamonn Holmes have each been parrying HMRC in the tribunals, with varying degrees of success.
Eamonn Holmes was appealing against the First Tier Tribunal (FTT) decision in 2020, finding that he was an employee for tax purposes and should have paid the IR35 charge. The Upper Tribunal (UT) upheld the decision of the FTT, agreeing that a ‘hypothetical contract’ (i.e. where you ignore the physical contract and look at what actually happens in practice) was one of employment between Holmes and ITV. The UT found that the FTT had considered factors properly and had not erred in law in coming to their decision.
Meanwhile, at the FTT, Gary Lineker was successful against HMRC on what has been described as a ‘landmark case’ on IR35 and partnerships. This case was less around employment status principles and more whether IR35 applied to general partnerships where the contract was entered into by a partner who was also the worker.
Whilst the FTT found that general partnerships could absolutely act as an intermediary and therefore fall within IR35, because Gary Lineker entered into a contract with BBC and BT Sport on a personal capacity, the FTT concluded that the intermediaries legislation could not apply.
Both decisions are fascinating reads, especially the Gary Lineker case. For the latter, HMRC was seeking tax/NIC on a lesser amount than the taxpayer actually paid which seems to suggest a number of other cases are dependent on this one. My favourite quote (from Croner-i) “if Gary Lineker was a tax-avoider, he wasn’t very good at it. Happily the reputation of one of our national treasures remains unimpugned.” HMRC are currently deciding whether to appeal the case.
