Radio host Paul Hawksbee has seen off an IR35 challenge in which HMRC demanded tax and NIC of £143,126 from his company Kickabout Productions Ltd.
Paul Hawksbee has worked as a comedy scriptwriter since 1985, writing for a number of successful TV shows. In January 2001, on the advice of his accountant, he set up Kickabout Productions Ltd to provide his services on a range of projects. Around the same time, he began to co-present a live show each weekday on Talksport Radio.
This case concerned only his work for Talksport in the tax years 2012/13 to 2014/15, which represented around 90% of the income of Kickabout Productions in that period. Hawksbee was contracted to present at least 222 shows per year, but he was only paid for the shows he presented.
The FTT examined two written agreements which covered the three-year period. Each agreement with Talksport was renewed every two years.
However, the agreement which commenced on 1 January 2012 took the form of a letter between Talksport and Hawksbee, not a contract with his company Kickabout Productions. The tribunal accepted this was an administrative error, and that it should be treated as a letter from Talksport to Kickabout.
There are two members of each first-tier tribunal: a judge and a lay member. Charles Baker, the lay member, did not agree with Judge Scott on three points, which could tip the next IR35 case in favour of HMRC.
If there is a mutuality of obligation for the engager to provide work and the individual to accept it, this is an indication of an employer/employee relationship.
It appears that Hawksbee had to perform each show personally, as there was no right of substitution mentioned in either of the written agreements or in other verbal evidence.
However, Talksport didn’t have to broadcast each live show and it did, in fact, cancel the show on two occasions at short notice after terrorist incidents. This led Judge Scott to conclude that the radio station was not obliged to provide work for Hawksbee, and overall there was no mutuality of obligation.
This is the fourth in a series of cases involving TV and radio presenters. There may be further IR35 cases concerning actors and presenters in the tribunal pipeline.
