“Although there would be a hope and expectation of further work under the arrangements, for the most part, when she finished work on a particular engagement, Ms Fospero would have no assurance that she would be offered further work.”
Therefore he decided to allow her appeal.
An HMRC spokesperson said: “We are considering an appeal.”
Dave Chaplin, chief executive officer and founder of Contractor Calculator, said: “This appears to be a sensible approach by the tribunal – to properly stand back and consider whether the presenter was in business on their own account.
“Helen Fospero clearly was; she was in the business of presenting and broadcasting and was doing so on a self-employed basis.
“This is the second IR35 case, after the Atholl case in April when Kaye Adams won her appeal, which was also decided on due to her being in business on one’s own account.”
He added: “It is surprising this case went as far as tribunal, because it does appear that Ms Fospero was a casual worker with no obligation to accept work or be offered work – which is one of the key tenets of employment. HMRC clearly took a very narrow-minded view.”
In a decision published few days after Ms Fospero's (October 29), HMRC lost its case against an IT consultant whom it deemed liable for £243,000 in tax.
From 2010 Richard Alcock, through his limited company RALC Consulting Ltd, entered into a series of contracts with former employer Accenture and the department for Work & Pensions, which was a client of Accenture and whose projects Mr Alcock had previously worked on.
HMRC argued that continuing to work for his former employer implied that Mr Alcock was carrying out continued work.
But the judge threw out this argument and allowed the appeal after he deemed Mr Alcock to be self-employed.
However, other cases have gone in HMRC’s favour.
Last week (October 28), former BBC presenter Christa Ackroyd lost her appeal against the tax authority making her liable for more than £400,000 in outstanding tax under IR35 legislation.
What do you think about the issues raised by this story? Email us on firstname.lastname@example.org to let us know