Broadcaster Adrian Chiles' IR35 case back to the beginning

The on-going case involving broadcaster, Adrian Chiles and a £1.7 million challenge to his IR35 status from HMRC, has been referred back to where it started five years ago.

The background to this is the case between Mr Chiles' 'personal service company', Basic Broadcasting Limited and the time between 2012 and 2017 when he provided his services as a broadcaster and presenter for the BBC and ITV.

It was first heard at a First-tier Tribunal (FTT) in November 2019 and then partly reheard by a different judge in November 2021, as a result of the Covid issues at the time.

In February 2022, the FTT concluded that IR35 did not apply to the engagements with the BBC or ITV.

In assessing the relevance of the hypothetical contract, the FTT concluded that:

• There was sufficient mutuality of obligation;
  
• There was a sufficient framework of control to be indicative of an employment relationship, eg editorial control;
  
• However, the telling point was that the FTT decided that there was sufficient evidence to show that Mr Chiles was 'in business on his own account' which tipped the balance to show that he was engaged as a self-employed individual and not an employee.

Upper Tribunal

But the Upper Tribunal decided that the FTT had made errors - that the decision that he was 'in business on his own account' was misguided, and that it was possible for an individual to be both an employee and self-employed in relation to an activity.

The Upper Tribunal also noted that the case law had evolved since the FTT hearing, so that it was necessary to consider whether the factors identified by the FTT as relevant to the overall analysis were actually or reasonably known to the BBC or ITV at the time of contract.

The outcome was that the Upper Tribunal set aside the earlier FTT decision and remitted the case back to the same panel to reconsider their decision.

Stressful time

Seb Maley, CEO of IR35 compliance experts,

Qdos, said Mr Chiles faces 'another incredibly stressful period' through no fault of his own.

He said: "The Upper Tribunal hasn't necessarily said that Mr Chiles shouldn't have won his case, it's more that how the judges went about deciding this crucial element wasn't right.

"The concerning thing is that, through no fault of his own, he now faces the prospect of heading back to the FTT to effectively clear his name yet again. It's down to an error from the judges, which smacks of unfairness.

"We see this time and time again. A freelancer proves their innocence only for HMRC to appeal and be granted another hearing. In what is yet another IR35 saga, Adrian Chiles must demonstrate that he is genuinely self-employed once more or face a £1.7mn tax bill.

"It speaks volumes of a system with odds stacked against taxpayers, who can't move on with their lives just in case HMRC is given another bite at the cherry. The worrying thing is that this all stems from a mistake apparently made by one of the tribunal judges."