The Upper Tribunal identified errors of law in the First-tier Tribunal’s decision, and based on a remade decision, the Upper Tribunal was satisfied that a hypothetical contract between a hospital and an individual was a contract of employment for IR35 purposes. 

An individual (GM) was the sole director-shareholder of his personal services company (GML). A dispute arose with HM Revenue and Customs (HMRC) concerning income received by GML in connection with locum urologist services provided by GM to Royal Berkshire Hospital (RBH) between March and August 2013 and Medway Maritime Hospital (MMH) in September and October 2013. HMRC issued an income tax determination and decision regarding National Insurance contributions (NICs) based on the intermediaries legislation in ITEPA 2003, ss 48–61 and equivalent provisions in SSC(I)R 2000 (IR35). GML appealed.  

The First-tier Tribunal (FTT) allowed GML’s appeal in relation to