No: of course we’re not weighing in on that tiff: this note is about the First-tier Tribunal case [2023] UKFTT 340 (TC) on the tax treatment of the amounts which the BBC (and BT) paid to secure Mr Lineker’s services. But, in its field, it’s likely to set the cat among the pigeons quite as much as anything Mr Lineker has tweeted.
Fearing that it might have to operate PAYE on the payments, the BBC insisted that Mr Lineker should provide his services via a partnership, so that the PAYE buck should be passed to that intermediary vehicle. So Gary duly formed a partnership with his then-wife Danielle which contracted with the BBC and (separately) BT to provide his services.
HMRC, on investigation, concluded that the BBC’s concerns had been well-founded: if it had contracted directly with Mr Lineker instead of with the partnership, that would have been a ‘contract of service’. Therefore, HMRC said, the infamous ‘IR35’ rules applied and the partnership was required to account for, broadly, the PAYE and NIC that would have been payable had there been a direct contract.
Usually in such cases the argument between the parties is as to whether the notional direct contract would have been a ‘contract of service’.
But in this case the First-tier Tribunal (‘FTT’) didn’t get as far as considering that issue. It decided the case on different grounds.
It was argued on behalf of Mr Lineker that because a partnership is not a legal entity, it could not be an ‘intermediary’ under the IR35 rules. Given that the rules explicitly say that it can be, and even make special provision as to the manner of their application to a partnership, this was always going to be a somewhat difficult argument to make, and it was duly rejected by the FTT.
Almost as brave was the argument that the relationship between Gary and Danielle was not really a partnership at all, but something else – even though it was governed by a written document headed ‘Partnership Agreement’; partnership accounts had been drawn up; partnership returns had been filed; and the existence of a partnership had been confirmed at a meeting with HMRC at which Mr Lineker had been present. Again, the argument was rejected.
So: if this was a partnership and IR35 can apply to partnerships, why (or indeed how) did the FTT conclude that the ‘IR35’ rules were not capable of applying to this partnership?
The answer is that, although in the case of both the BBC and BT the broadcaster concerned contracted with a partnership for the services of Mr Lineker, and although Mr Lineker signed each contract in his capacity as a partner, the FTT considered that ‘he did so as principal thereby contracting directly with the BBC and BT Sport. As such, the intermediaries legislation cannot apply – it is only applicable “where services are provided not under a contract directly between client and the worker” (emphasis added). In this case Mr Lineker’s services were provided under direct contracts with the BBC and BT Sport.’
Some will consider this, if true, to be one of the odder consequences of the IR35 rules. The more so because the FTT accepted that if the contracts had been signed on behalf of the partnership not by Gary but only by Danielle (whose signature would have bound the partnership in exactly the same way), there would not then have been a direct contract between the client and ‘the worker’ (Mr Lineker) and there would have been no bar to the application of the IR35 rules.
The notion that the IR35 rules are or are not capable of applying to a partnership depending on which partner signs the contract on behalf of the partnership is a surprising one. It will be interesting to hear what the Upper Tribunal have to say about it on the appeal which is surely inevitable.
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This article was republished by Tax Journal and is available on the Tax Journal website.
[Image credit: Craiyon]