Lorraine Kelly is a theatrical artist, tax tribunal judge rules

The breakfast TV presenter Lorraine Kelly is performing the role “of a friendly, chatty and fun personality” when she appears on ITV each morning and not simply appearing as herself, a tax tribunal judge has ruled.

The presenter of the magazine show Lorraine “presents a persona of herself”, Judge Jennifer Dean ruled, and as such can be described as a “theatrical artist”, meaning payments to an agent were allowed as a tax deductible expense.

“We did not accept that Ms Kelly simply appeared as herself; we were satisfied that Ms Kelly presents a persona of herself,” Dean’s ruling stated.

“We should make clear we do not doubt that Ms Kelly is an entertaining lady, but the point is that for the time Ms Kelly is contracted to perform live on air she is public ‘Lorraine Kelly’; she may not like the guest she interviews, she may not like the food she eats, she may not like the film she viewed but that is where the performance lies.”

The remarks came in a ruling by the first tier tax tribunal into a successful appeal by Kelly against a £1.2m tax and national insurance bill from HMRC.

The TV presenter received the bill as part of the revenue’s crackdown on personal services companies used by a host of stars employed by national broadcasters.

It has argued that the presenters are effectively employees, and should be subject to income tax and national insurance contributions (Nics).

Last year HMRC was victorious in a similar case against the BBC presenter Christa Ackroyd who was employed through a personal services company to present the corporation’s Look North programme.

But this time the judge decided “the relationship between Ms Kelly and ITV was a contract for services and not that of employer or employee”, and the presenter was in control of her working day and how she hosted the programme.

Kelly and her husband are the directors and shareholders of a personal services company called Albatel Limited, and the contract for her to host the ITV morning show is between ITV Breakfast Ltd and the company.

In 2016, HMRC determined that if the contract, worth £1m a year, had been directly between Kelly and ITV she would have paid £899,912 in taxes and £312,615 in NICs, and it billed her for those sums.

But in a witness statement to the court, Kelly told how she worked for a wide range of media outlets, and as a brand ambassador for Avon.

She said she decided on her own working hours for Lorraine and told how she had turned down an interview with Sir Elton John which required a live link from Australia at 4am as she was filming for the BBC later the same day.

She also pointed out that she did not receive the perks of being an ITV employee, such as a pension or sick pay.

Although the tribunal decided that the IR35 legislation used by HMRC did not apply in Kelly’s case, it said both HMRC and Albatel had asked it to consider if agency fees should have been tax deductible in this case.

This led to discussion of Kelly’s role as a presenter, and whether she could be considered a “theatrical artist”.

The judge said that watching clips of Kelly’s work “gave us a clear impression of the tenor of the programmes” and that they could not be viewed as current affairs shows.

In her evidence Kelly had also drawn a distinction between her role and that of Jeremy Paxman on Newsnight, and pointed out that her programme was taken off the air whenever a news story broke.

A spokesperson for HMRC said: “We are disappointed that the first tier tribunal has decided that the intermediary rules (also known as IR35) did not apply in this case. We will carefully consider the outcome of the tribunal before deciding whether to appeal.”

The Association of Independent Professionals and the Self-Employed (IPSE) said the ruling showed HMRC was “in the dark” about its own rules.

Andy Chamberlain, IPSE’s deputy director of policy, said: “Lorraine Kelly’s case is the fourth of five IR35 cases that HMRC have lost since 2018. It is now clear that they have wrongly been hounding many BBC and ITV presenters over a tax law they do not understand themselves.”