HMRC chases Gary Lineker under IR35, in biggest ever status match-up

HMRC is chasing football legend Gary Lineker under IR35, in the legislation’s biggest ever match-up, tipped now -- even before kick-off -- to be an open goal for the ex-England striker.

In fact, told of the 60-year-old presenter allegedly being inside IR35 for 2013-17 contracts with the BBC and 2015-18 contracts with BT Sport, experts are already agreed on the result.

'Overlooking in-business factors'

“This FTT document is seeking directions from the tribunal…in another case of HMRC chasing the ‘big money’ but seemingly overlooking ‘in business on your own account,’” says IR35 adviser Kate Cottrell, referring to Mr Lineker’s potential tax liability, a hefty £4.9m.

“Although the appeal is mainly on the basis that the amounts claimed by HMRC are wrong, I suspect the quantum will in the end be irrelevant because Mr Lineker is likely to win this using his ‘brand,’ similar [to how fellow presenters] Lorraine Kelly and Kaye Adams [did].”  

Qdos, an advisory on the off-payroll rules, agrees with the Bauer & Cottrell co-founder that historic IR35 cases bode well for the Match of the Day presenter potentially scoring quite heavily once the hearing is underway.

'A lot to be desired'

“HMRC’s understanding of the IR35 rules and their track record in tribunals leaves a lot to be desired,” says the advisory’s CEO Seb Maley.

“So I wouldn’t be too surprised if it’s found that Lineker is genuinely self-employed and HMRC have got things wrong, yet again.”

Even one of its former inspectors, Carolyn Walsh, believes the Revenue risks a thrashing for taking the former England football captain to court over his status.

'Unique value'

“It’s time the tax authority stopped trying to fit a round peg into a square hole in cases like this one.

“Certain contractors are so independent, or even unique in their value to their alleged ‘employer’ that employment cannot describe or contain the relationship, even if that relationship doesn’t look like a typical business relationship.

“So it was with Kaye Adams,”  says Walsh, boss of CWC Accounting, “and so it will be with Gary Lineker.”

'Not much in common with the typical contractor'

But even if the co-owner of Gary Lineker Media LLP is found outside IR35, as expected, aspects of the case will limit its application to the ‘average’ contractor, warns Chris James, chair of the Freelancer & Contractor Services Association.

“Although the relevant challenge from HMRC is the same”, he says, “Mr Lineker’s intermediary was a partnership, rather than a limited company.

“[In addition], the way he was working at the time, as a presenter and TV personality, doesn’t have much in common with [your typical freelance] IT developer.”

The taxpayer’s final payment to HMRC also won’t have much in common with the average IR35 case, should the taxman defy the expectation and avoid defeat.

'Misleading'

“[The] £4.9m [figure] may be a little misleading as HMRC IR35 bills do not account for tax already paid,” explains another chartered accountant Helen Christopher of Orange Genie.

“If this is offset later and if Gary Lineker was using an LLP [as it appears], then he would have paid significant tax on a self-employed basis.

“That would imply that even if HMRC were to be successful, their tax take would be significantly less than the [£4.9m], although Mr Lineker would then have Employer NIC to pay too.”

'Unable to reach a conclusion'

Also looking at the incoming IR35 fixture between the two heavyweights on more technical grounds is WTT Consulting tax director Graham Webber.

Referring to the FTT citing a February 2018 letter from HMRC (in which a tax officer admits there is insufficient evidence to issue an opinion of Mr Lineker’s IR35 status), Mr Webber reflected:

“By their own admission, [HMRC] has investigated and have been unable to reach a conclusion. Nonetheless they issue an assessment and now complain when it is challenged.

“That is not how the system is meant to work and to be blunt, I suspect many FTT judges would regard HMRC's blatant attempt to manipulate the tribunal as they did here, in a far more pejorative manner than [presiding] Judge John Brooks. One rule for them, different one for us perhaps?”

'HMRC on very uncertain ground'

“HMRC are on very uncertain ground here,” echoes the Association of Independent Professionals and the Self-Employed (IPSE).

IPSE’s policy director Andy Chamberlian added: “Gary Lineker has been targeted because of the needlessly and damagingly complex IR35 rules.”

So complex that HMRC is yet to issue a formal opinion. At JSA Services, its director of accounting services Mr James explained his assessment.

"More than anything else, this ongoing case illustrates the difficulty experienced by those who are most experienced – trained legal minds, and HMRC themselves -- in correctly applying the original IR35 legislation.”

'Regardless of the final score here, get your own evidence'

But to Chris Mattingly of IR35 Navigator, Gary Lineker versus HMRC should still serve as a warning to the non-famous, whenever it does eventually play out.

“Regardless of the final score, this case serves as a reminder that HMRC are determined to pursue what they believe to be non-compliance, and we will no doubt see many more cases in the years to come,” Mr Mattingly cautioned, adding: “To avoid a costly trip to the tribunal, it is vital both engagers and contractors take a proactive stance, to record and evidence their IR35 status decisions.”