ESM7320 - Case Law: Christa Ackroyd Media Limited v Revenue & Customs

UT 2018/0082

Point at Issue

Whether the relevant aspects of the 바카라 사이트渋ntermediaries legislation바카라 사이트� contained in sections 48 to 61 of the Income Tax (Earnings and Pensions) Act 2003 (바카라 사이트淚TEPA 2003바카라 사이트�) and in the Social Security Contributions (Intermediaries) Regulations 2000 (the 바카라 사이트淩egulations바카라 사이트�) applied to the services Christa Ackroyd provided to the BBC via her personal service company Christa Ackroyd Media Ltd.

Appeals had been dismissed by the FTT against decisions made by HMRC for the Tax Years 2006/07 to 2012/13. The decisions had been made under the intermediaries legislation, on the basis that there had been a direct hypothetical contract of service between Ms Ackroyd and the BBC.

Facts

Christa Ackroyd is a broadcaster and journalist known for her former work presenting regional news programmes including BBC Look North and Calendar for ITV Yorkshire.

The BBC was obliged to pay Ms Ackroyd the agreed contractual fees even if it did not call on her services for the amount of days it was entitled to under the contract.

Ms Ackroyd was obliged not to engage in any conduct which would compromise or call into question the impartiality or integrity of the BBC or herself. She could not provide services as a television presenter or broadcaster in the UK or Ireland without the consent of the BBC.

Ms Ackroyd was able to choose when she worked, coming and going outside the established shift pattern as long as she was available for the 6pm Look North slot.

Ms Ackroyd had to give reasonable notice if she was not available to present on a particular day.

Whilst Ms Ackroyd had a high degree of autonomy in carrying out her work and identifying the stories she wished to follow, she did not have day to day editorial control over her work. The BBC had the ultimate right to change the programme and decide who would be interviewed. Whilst she was on air in a live programme, she clearly had de facto control due to the nature of the work.

Ms Ackroyd did not have a line manager and was not subject to formal appraisals. There was a post-production meeting to hear feedback about the programme, but this was not an appraisal and there would be no recriminations if anything had not gone to plan.

Contentions

The appeal to the Upper Tribunal was on the sole ground that the FTT erred in law in its conclusion that the BBC had sufficient control over Ms Ackroyd.

Upper Tribunal decision

If a genuine contractual right of control to a sufficient degree exists, it does not matter whether that right is actually exercised. The contract gave the BBC first call on the services of Ms Ackroyd 바카라 사이트渁s it may require바카라 사이트�. The Tribunal held that the reference to what the BBC may require was a reference to using whichever of Ms Ackroyd바카라 사이트檚 services as it may choose, such as presenter, reporter etc. The BBC could direct which service it required. The Tribunal was satisfied that despite the contract having no express term dealing with ultimate control, it was right to imply a term that the ultimate right of control lay with the BBC.

Although much would be left to Ms Ackroyd바카라 사이트檚 professional judgment, if the BBC considered that she was breaching the BBC바카라 사이트檚 editorial guidelines in a material way, then it could direct her to work in a way consistent with the guidelines despite not being subject to a contractual obligation to comply with them. The correct test was 바카라 사이트渨hether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter바카라 사이트檚 order and directions바카라 사이트�. The fact that the BBC were unable to control the real time provision of Ms Ackroyd바카라 사이트檚 services was not inconsistent with a 바카라 사이트榝ramework of control바카라 사이트� being in place.

The absence of appraisals and line managers was found not to be material to the control question.

The fact that the BBC imposed control because of the regulatory environment did not diminish that control바카라 사이트檚 relevance.
The fact that regulatory controls apply to all content providers (employed and self-employed) did not mean that they should be ignored when considering control.

The FTT dismissed the taxpayer바카라 사이트檚 evidence that she would not have entered in to the relevant contract if it had provided for control over her by the BBC as of marginal relevance. The UT agreed that this was the correct approach.

The appellant sought to distinguish control over 바카라 사이트榦utput바카라 사이트� of the BBC and Ms Ackroyd바카라 사이트檚 바카라 사이트榠nput바카라 사이트� which could not be controlled. The UT found this distinction to be highly artificial and unhelpful in the context of a live TV show. In any event the UT endorsed the FTT바카라 사이트檚 finding that the BBC had the right to control not only what they did with Ms Ackroyd바카라 사이트檚 work product, but also what she did in the first place.

Appeal dismissed.

Commentary

This case is particularly helpful as it resolves a number of issues which are routinely argued in the FTT against HMRC and which have on occasion been accepted by the FTT as pointers away from an employment relationship. These include:

  • Input vs. output;
  • The significance of regulatory control;
  • The lack of an express contractual right of control;
  • The absence of a 바카라 사이트榝ramework바카라 사이트� simply because appraisals aren바카라 사이트檛 present.