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  • HMRC’S ‘catch of the day’? Football’s ‘Mr Nice’ and IR35

    12 May 2021

    Andy Wood

    I may be sticking my neck out here but I reckon that anyone who’s ever found themselves challenged by HMRC will not exactly liken tax to a game.

    Yet some of the language repeatedly used by the Revenue has echoes of England’s national sport: football.

    Flick through almost any of its publications, from its chunky annual report to its periodic briefing papers, and you’ll find plenty of references to “tackling” tax avoidance or evasion, as though Hector the Tax Inspector had ditched the pin-striped suit and bowler hat of old for the no-nonsense demeanour of a Ron ‘Chopper’ Harris or a Vinnie Jones.

    Like many a soccer hard man, HMRC is always eager to intimidate the wider tax-paying public by occasionally leaving its mark on opponents.

    Football has been in the Revenue’s firing line quite a lot in recent years. In response to a prompt from its political paymasters, it began chasing the Premier League’s high-earning foreign legions over allegations that their use of image rights companies meant they may not have been paying as much tax as they should.

    A notable victory in the Supreme over Glasgow Rangers’ use of Employee Benefit Trusts (EBTs), then had many in the game quaking in their garishly-coloured boots.

    We shouldn’t necessarily be surprised, therefore, to learn that HMRC has decided to go in hard against one of English football’s gentlemen, the former England captain Gary Lineker.

    In addition to being his country’s third highest scorer at international level, Lineker was never booked during his career and has been the well-remunerated main presenter of BBC TV’s ‘Match of the Day’ since 1999.

    He is also the anchor of BT Sport’s Champions’ League coverage and has been the face of Walkers Crisps adverts for more than a quarter of a century.

    News reports in recent days have told of how he’s being pursued by HMRC for £4.9 million.

    Papers filed in advance of a First Tier Tax Tribunal hearing have detailed how the Revenue claims he should have coughed up £3.62 million in Income Tax and £1.3 million in National Insurance for work done between 2013 and 2017 for the BBC and 2015 to 2018 for BT Sport.

    The same documents illustrate how Lineker was, during the periods in question, engaged through a partnership – Gary Lineker Media – which he set up in 2012 with his then wife, the model Danielle Bux.

    HMRC alleges that payments into the partnership should be classed as his employed income and taxed accordingly because, it says, Lineker was in effect a direct employee of the BBC and BT Sport.

    Given his lengthy celebrity on and off the football pitch, it’s perhaps to be expected that the case has been picked up by the national press.

    It serves an indirect purpose too, though, and one which arguably benefits the Revenue.

    The coverage will help underline the anxieties of other freelance consultants or contractors and make them think that if the taxman can make an example of a saintly English striker and one of the best-known sports pundits, then it might be even easier to make things difficult for them too.

    One of the commentators on the Lineker case has said as much, telling The Times that it “highlights the potential risks of non-compliance — not just to freelancers and contractors, but also to businesses that engage them”.

    Although the Lineker matter has apparently been rumbling for a year or so, it’s quite timely for HMRC as changes to the private sector rules on IR35 only came into force last month after a delay due to Covid.

    The rules are intended to “ensure two people sitting side by side doing the same work for the same employer are taxed in the same way” and “tackle” (that word again!) non-compliance with off-payroll working arrangements.

    Despite being introduced for public sector work four years ago, their use in the private sector has been much criticised, with the Commons’ Treasury Select Committee calling for them to be scrapped.

    It’s not been plain sailing in practice either. HMRC has already suffered some high-profile reverses at the hands of Lorraine Kelly and ‘Loose Women’ presenter Kaye Adams.

    Both those cases hinged on a critical element in determining whether someone is what’s known as a “deemed employee” under the IR35 rules; namely, control.

    If a business dictates where someone works, when, on what projects and even what they may say, they might be considered to control that individual and, therefore, they could be regarded as an employee.

    Lorraine Kelly’s lawyers likened that to being an actor in a West End show, wearing a costume chosen for them and following a script which they may not have had a hand in writing.

    She was successful in arguing that she had considerably more control.

    Gary Lineker will, I think, pursue a similar line but he may go even further.

    That’s because his profile, insight and marketability make him something of a brand in himself.

    Lineker’s company has been engaged by BBC and BT Sport because he brings qualities – added value – to the programmes that he presents which they didn’t already have.

    It’s precisely those qualities which should see him prevail over HMRC.

    Of course, another big defeat – and the failure to claim a trophy victim of IR35 – will possibly pose further questions about the efficacy of the Revenue’s entire approach.

    As Lineker and his fellow ex-players might willingly stress, management of taxes is rather like football after all: “It’s all about results, innit?”

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