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Former tennis player and commentator Barry Cowan has lost second IR35 hearing with judge describing accountant's correspondence with HMRC as 'somewhat belligerent'
Cowan operated through a personal services company, Cranham Sports LLP, which was set up in 2009 and he was the sole member.
The original IR35 issue in dispute related to Cowan’s work as a tennis commentator for Sky Sports over a five-year period.
Cowan originally lost his case at the First Tier Tribunal (FTT) in April 2023 to make a late appeal against HMRC’s position that he should be treated as an employee of Sky UK Limited for tax purposes for work carried out between the tax years 2014 and 2019.
Now the Upper Tribunal has rejected Cowan’s appeal for a second time over a procedural issue over the lateness of the appeal, which was late, and not within the 30-day deadline.
He had missed the deadline to make an appeal and his accountant also failed to ensure that the claim was made in time.
Cowan used an unnamed firm of chartered accountants according to the tribunal to handle his tax affairs which the FTT said ‘should have been, and were in any event, were made aware of the statutory time limit in which to request a review or notify an appeal’.
The relationship between the accountants and HMRC sounded challenging.
Judge Phyllis Ramshaw said that the ‘email of 8 December 2021 from the appellant's representative could not, in our view, be regarded as the acceptance of HMRC's offer of a review.
‘It was a somewhat belligerent reply (no doubt expressing the appellant's representative's frustration with HMRC) to HMRC and seems impossible to interpret it as the acceptance of the offer of an internal review.’
The Upper Tribunal agreed with the FTT that the reason for the delay was a mistake made by the appellant's representative in not realising that the 30-day period had started to run from 9 December 2021, and therefore was ‘not an error of law’.
There were also issues around the timing of Cowan’s appeal as he argued that part of the delay was because he was awaiting documents from Sky UK Limited, but this ground for appeal was rejected.
The appeal was dismissed as the tribunal found that ‘the [FTT] decision discloses no error of law’.
Dave Chaplin, CEO of IR35 Shield said: ‘Reading the ruling, it is hard not to feel sympathy for Mr Cowan and his advisors, because it appears HMRC was less than forthcoming in responding to their representations. Even so, an appeal must normally be made in time.
‘Notably, the engagements in question are from the 2013/14 tax year, meaning Mr Cowan now becomes another unfortunate member of the “IR35 decade club” – a group of taxpayers for which it has taken over 10 years to get certainly on their tax affairs.’
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