HMRC v Talentcore – Team Spirit
| Jurisdiction | UK Non-devolved |
| Judge | MR JUSTICE ROTH |
| Judgment Date | 14 October 2011 |
| Neutral Citation | [2011] UKUT 423 (TCC) |
| Respondent | TALENTCORE LIMITED (t/a TEAM SPIRITS) |
| Appellant | THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMS |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Appeal Number | FTC/48/2010 |
Appeal number FTC/48/2010
[2011] UKUT 423 (TCC)
Agency workers – income tax and NICs – whether obligation to provide
personal services – right of substitution- whether difference between ICTA
1988 and ITEPA 2003
UPPER TRIBUNAL (TAX AND CHANCERY CHAMBER)
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS
Appellants
- and -
TALENTCORE LIMITED
(t/a TEAM SPIRITS)
Respondent
TRIBUNAL: MR JUSTICE ROTH
Sitting in public at the Royal Courts of Justice on 21-22 July 2011
Mr Adam Tolley and Ms Kate Balmer, instructed by the General Counsel and Solicitor
to HM Revenue and Customs, for the Appellants
Mr Jeremy Woolf, instructed by David Jones & Co (accountants) for the Respondent
© CROWN COPYRIGHT 2010
2
DECISION
1. This is an appeal by Her Majesty’s Revenue and Customs (“HMRC”) brought
with permission granted by the First Tier Tribunal (“FTT”) against its decision 5 (“the Decision”) allowing the appeal by the Respondent (“Talentcore”) against
the assessments to tax under PAYE and national insurance contributions
(“NIC”) for the years 1998-99 to 2006-07. The appeal gives rise to questions
concerning the proper construction of the deeming provisions in the governing
legislation that apply to what may be broadly described as ‘agency workers’; 10 and the application of those provisions to the facts of this case.
The Facts
2. Talentcore, which trades under the name “Team Spirits”, is engaged in the
supply of individuals to major cosmetic companies for counter and
promotional work at airport duty-free shops. It has a database of about 100 15 individuals, who are referred to as “consultants”. The duty-free shops are run
by World Duty Free and it seems that Talentcore also supplies consultants to
World Duty Free directly to assist in the normal operation of their duty-free
shops.
3. Having heard evidence from Mrs Ryta Carr, who runs Talentcore, and from 20 four of the consultants, the FTT made the following findings of fact at
paragraph 4 of the Decision :
“(1) There is no framework contract between [Talentcore] and the
consultants. [Talentcore] is free to offer work to them or not, and they
are free to accept or decline work when offered. 25
(2) There are no written contracts between [Talentcore] and either
the cosmetics companies (or World Duty Free which runs the duty-free
shops) or the consultants.
(3) Mrs Carr is well known to the cosmetics companies having
worked with them for 20 years. Through [Talentcore] she has built up 30 a business of providing experienced consultants for work in duty-free
shops. Cosmetic companies will obtain a three-week slot for
promotions in the duty-free shop which take place from a position,
described as a gondola, separate from the normal cosmetics counters.
About 70% of [Talentcore’s] work is to find consultants to service
35 such promotions by selling the product being promoted. The
remainder of [Talentcore’s] work is to fill vacancies for work on the
counter in normal duty-free shopping areas, whether relating to
cosmetics or alcohol, including sometimes, though not normally,
operating the till. 40
(4) Talentcore does not train consultants but engages those who
have the necessary experience. Prospective consultants are
interviewed. During the interview Mrs Carr will explain the dress code
which is set out in a document entitled “Members code of practice” of
which there are versions 1 and 2 but Mrs Carr did not remember the 45
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2 cases
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The Commissioners for HM Revenue and Customs v Talentcore Limited (t/a Team Spirits)
...FTC/48/2010 [2011] UKUT 423 (TCC) Agency workers – income tax and NICs – whether obligation to provide personal services – right of substitution- whether difference between ICTA 1988 and ITEPA 2003 UPPER TRIBUNAL (TAX AND CHANCERY CHAMBER) THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUS......
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R & C Commissioners v Talentcore Ltd (t/a Team Spirits)
...Tribunal) Rules 2008, r. 10(8)(c), 11(1), (2), (9). This was an application by the taxpayer for its costs after the Upper Tribunal ([2011] UKUT 423 (TCC); [2011] BTC 1,869) upheld a decision of the First-tier Tribunal ([2010] UKFTT 148 (TC); [2010] TC 00454) that workers supplied to act as ......