IR35: a divergence between ‘employment’ for tax purposes and for employment purposes?

In an article for ELA Briefing, Christopher Stone and Stephen Ratcliffe (of Baker McKenzie) discuss the recent Court of Appeal judgments in Kickabout Productions Ltd v HMRC and HMRC v Atholl House Productions Ltd. 

"Of interest to all employment practitioners is not what the judgments say about IR35; rather it  is what they say about the determination of employments status generally, and what may be a material difference in the way in which employment misclassification issues should be approached as regards employment rights versus tax status.

The Court of Appeal has reaffirmed that the structure of Ready Mixed Concrete remains the starting point for determining employment status, but provided clarification around how to approach the three stages: mutuality of obligation; control; and most importantly, the ‘third stage’. Interestingly, it has also said that both Autoclenz and Uber are of limited relevance to the determination of employment status for tax purposes, given the focus of those decisions on statutory protections specific to employment law."

This article was written for and produced by ELA. 

Christopher Stone appeared for HMRC in both Kickabout and Atholl House, leading Marianne Tutin in both cases, and was led by Akash Nawbatt QC in the Kickabout appeal. Georgia Hicks and Harry Sheehan, led by Jonathan Peacock QC (11 New Square), represented Kickabout Productions.

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