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HMRC brief outlines position on ITV Services case

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HMRC has published Revenue & Customs Brief 29/13, National Insurance contributions: HMRC’s position following the Court of Appeal decision in the case of ITV Services Ltd v Commissioners for HMRC.

In the brief, HMRC states: ‘Although the specific contracts cited in the [Court of Appeal] judgment [(2013) EWCA Civ 867] only concerned actors engaged by ITV, HMRC considers that the principles established in this and the previous decisions in the tribunals below cover all “entertainers” as statutorily defined in [the Social Security (Categorisation of Earners) Regulations,  SI 1978/1689, Part 1 Sch 1 para 5A] – “a person employed as an actor, singer, or musician or in any similar performing capacity”. HMRC now expects those in the industry engaging entertainers to comply with the court’s decision.’

HMRC added ‘the extent to which HMRC will seek to apply the Court of Appeal decision retrospectively will be determined by a number of different factors’, and that: ‘Where HMRC has previously issued a written opinion to a party that class 1 NICs are not due in respect of payments made under a particular contract because HMRC did not consider those payments to be “by way of salary”, it will not seek recovery retrospectively of the unpaid NICs that were due and payable prior to 6 April 2011 (unless HMRC has expressly advised an engager that NIC should be operated from an earlier date).’