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Reasonably interesting IR35 case

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HMRC won at UT on appeal. Interesting legal analysis. Shows yet gain what an incomprehensible mess IR35 is.

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By richard thomas
29th Jul 2020 11:30

What is really interesting about this case is that it is another in a respectable number of cases where the member has dissented and the dissent was upheld by the UT or above.

I have sat with Charles Baker and he is very good and very knowledgable, so much so that in another case the Judge left him to write the decision.

Other such cases include the McLaren case where Nicholas Dee's dissent was upheld, and of course Rangers where the Supreme Court praised Heidi Poon's dissent.

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By Justin Bryant
29th Jul 2020 14:14

Very interesting to hear that Richard (not that any of your other comments here are uninteresting of course).

I mentioned HP's dissenting Rangers judgment here recently and your (and the SC's) comments with reference to her are, in my very respectful view, somewhat overly flattering to say the least (the highest I think you could put it is that she was right for the wrong reasons, assuming you accept the SC's Rangers judgment was right in the 1st place, which many tax lawyer commentators, including myself, do not - at least re the non side letter employees).

As for the above case, I thought it was interesting in showing IR35 is an even bigger confusing mess than most people realise, caused mainly by the effect of a deeming rule (never a good start when you want any certainty) combined with the vexed question of when is a contractual matter a question of law, fact or both (so one has to have great sympathy for the judges here and we should not be too critical). The effect of that complex interaction for IR35 purposes is not really made clear in this case even (unsurprisingly, as perhaps it's an impossible job for anyone to make IR35 clear).

It's not much simpler for non-IR35 cases. See:

The UT could even arguably be accused of the para 67 problem below (i.e. just coz they disliked the FTT's decision):

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