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Television presenter Eamonn Holmes is challenging a tribunal ruling that concluded he should be treated as an ITV employee for tax reasons when he presented This Morning.
The broadcaster previously brought a case against HMRC over the income tax and national insurance the body said was due on the money ITV had paid to Mr Holmes’ company Red, White and Green Limited between 2012 and 2015.
HMRC said Mr Holmes needed to pay tax under what are known as off-payroll working rules because if he had a contract directly with ITV, he would have been classed as an employee.
However, lawyers representing Mr Holmes’ company had argued that the journalist was freelance and his income was accounted for as from self-employment.
In 2020, a specialist judge at the First Tier Tribunal ruled that Mr Holmes counted as an ITV employee for income tax purposes, rather than being self-employed, and would therefore fall under the off-payroll rules.
The former ITV presenter – whose departure after more than a decade on This Morning was announced in November 2021 – is now appealing against this ruling at the Upper Tribunal in London.
On Wednesday, lawyers for the now GB News host said ITV did not have the same control over him that they would have an employee.
The relationship is commercially at arm's length, not employer-employee
Keith Gordon
Keith Gordon, for Red, White and Green Limited, said: “ITV can’t tell him when to come in so long as he is there and in front of the camera having done everything that’s appropriate.”
He added: “The relationship is commercially at arm’s length, not employer-employee.”
Mr Gordon told the court the editor of This Morning had previously said that he would have loved Mr Holmes to come in to work half an hour earlier each day, but was unable to require him to.
The barrister continued: “Mr Holmes turned up when he wanted, he left when he wanted.
“He appeared on rival stations with no difficulty from ITV and his evidence was that he chose who he wanted to interview and if he didn’t want to, his co-presenter would do so.”
HMRC is opposing the appeal, arguing that the specialist judge was correct to find that some of Red, White and Green’s services fell under the off-payroll rules.
Adam Tolley KC, for HMRC, said: “What matters is the right to control, not how and if it was expressed in the process.”
In written submissions, the barrister continued: “If one were to ask whether Mr Holmes was integral to the business of ITV or an accessory to it, one could only conclude that the answer was the former.”
Mr Tolley argued that ITV had the “sole discretion” to pick the date and locations of the shows.
He continued: “The tribunal correctly considered the pattern of work for ITV, the lack of hallmarks of being in business on his own account, the lack of expenditure incurred by Mr Holmes in carrying out his work on This Morning, the lack of ability to profit or risk of loss or bad debts, and the expenses and benefits provided by ITV.”
The barrister also said in written submissions that it was “common ground” Mr Holmes was not an ITV employee because he had “no direct contractual relationship with ITV”.
The hearing before Mr Justice Mellor and Judge Jonathan Cannan is due to conclude on Thursday with a decision expected at a later date.
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