Lineker 1 v 0 HMRC 

In Gary Lineker and Danielle Bux t/a Gary Lineker Media v HMRC [2023] UKFTT 00340 (TC), the First-tier Tribunal (FTT) held that the IR35 rules do not apply to a television presenter's services which were provided via an intermediary partnership because he himself had signed the relevant contracts in his capacity as a partner in that partnership and therefore had a direct contract with the relevant clients.

Background

Gary Lineker (GL) had provided his services to the BBC through a partnership, and then as a sole trader.  In 2012, as part of a contract review, the BBC insisted that its contractual counterparty be a general partnership.  GL and his then wife, Danielle Bux (DB), duly formed a partnership, governed by a partnership agreement dated 17 October 2012, which traded as Gary Lineker Media (GLM).  GLM contracted with the BBC (under two contracts) and also with BT Sport, for the provision of GL's services as a television presenter and commentator. GL executed the contracts in his capacity as a partner in GLM.

GL filed self-assessment tax returns for the years 2013/14 through to 2017/18, completing the partnership pages and reporting his share of the partnership income (which comprised GLM's net profit, save for £30,000 which was allocated to DB in respect of which she paid tax).  

In April 2017, HMRC wrote to GLM seeking a breakdown of the partnership's income.  Following a meeting and receipt of further information from GL, the BBC and BT Sport, HMRC issued notices of determination in respect of PAYE and NICs. During the course of 2018, HMRC issued review letters stating its opinion that if there had been a direct contract between GL and each of BT Sport and the BBC, it would have been a contract of service, with the result that the intermediaries legislation set out in Chapter 8, Income Tax (Earnings and Pensions) Act 2003 (ITEPA), commonly known as IR35, would apply.  GL and DB appealed to the FTT.

FTT decision

The appeal was allowed. 

The following three issues were considered by the FTT:

1.  whether IR35 applies to arrangements involving the supply of an individual's services to a client through a partnership governed by the Partnership Act 1890, in which the individual is a partner;

2.  whether GLM was a partnership; and

3.  whether there was a direct contract between the appellants and each of the BBC and BT Sport.

With regard to the first issue, GL and DB argued that a general partnership (which does not have a separate legal personality) cannot be an intermediary for the purposes of IR35.  The FTT rejected this argument and confirmed that IR35 does apply to general partnerships.

On the second issue, the FTT decided that GLM was a partnership as it was clear from the partnership agreement and from the parties' conduct that there was a business carried on by GL and DB in common with a view to a profit.  

In considering the third issue, the FTT noted that as well as the power of every partner to bind a firm (pursuant to section 5, Partnership Act 1890), the effect of a partner doing so under that legislation is that each partner acts "both as principal … and as agent, binding the firm and his partners in all matters under his authority" (the FTT quoted with approval the decision in Memec plc v Inland Revenue Commissioners [1998] STC 754 at 764).  As the BBC contracts and the BT Sport contract for the provision of GL's services had been executed by GL, it followed that there were contracts directly between the BBC and GL and between BT Sport and GL.  

The result of this was that the IR35 legislation could not apply, as section 49(1)(b), ITEPA,
 makes it clear that it is only applicable where "the services are provided not under a contract directly between the client and the worker but under arrangements involving a third party (“the intermediary”)".

Comment 

This is the first time that the issue of whether there was a direct contract between the worker and the client has come before the FTT.  The decision suggests that those drafting the IR35 provisions did not have general partnerships at the forefront of their mind when doing so, even though the legislation does refer to a partnership or an unincorporated body as a potential intermediary body.  It may initially seem counter-intuitive for the result here to depend on which partner executed the contractual agreements, but the FTT noted that that was the effect of the decision.  Given that there is no VAR in the tax tribunal system, HMRC may seek a re-match by way of an appeal to the Upper Tribunal, in order to correct what it will undoubtedly perceive to be a lacuna in the law. 

The decision can be viewed here.