IR35 was deemed to apply in the Upper-tier Tax Tribunal case of HMRC v Kickabout Productions Ltd [2020] 216 (TCC).

Mr Hawksbee, a radio presenter for Talksport, was challenged by HMRC over his employment status and after initially winning the case at the First-tier tax tribunal the Upper-tier allowed HMRC’s appeal.  

The judgment does not really contain any pearls of wisdom that will provide much assistance in other cases but it was interesting that the appeal tribunal overturned the decision because it concluded that there was a mutuality of obligation which was contrary to the outcome reached by the presiding judge at the First-tier.

It also reinforced the position that whilst an individual may not be subject to day to day control over how they work, a sufficient framework (or right) of control is sufficient for IR35 purposes.

Trinity tax feel there is a reasonable chance this case will be appealed again as the Upper-tier unusually, decided the outcome after considering the facts of the case, rather than reverting it back to the First-tier Tribunal. If it were appealed however, it seems unlikely a different outcome would be reached as it was always a little surprising in our opinion that IR35 was deemed not to apply in the first instance.

One thing is evident from this case, mutuality of obligation continues to be a very controversial topic for IR35.