UK case on partner/employee distinction

Jospeh Puttnam v Commissioners for HMRC [2019] UKFTT 389 (TC)

The appellant treated the income from his engagement by a diving company as trading income of a partnership with his spouse, and so declared 50% of that income as his share of the partnership profits for tax.

The tribunal agreed with HMRC that he was an employee and that the income from his contract was not income of a partnership but his own income. It ruled that s15 ITTOIA 2005, which stated that the “performance of the duties of employment [of a relevant diver] is … treated for income tax purposes as the carrying on of a trade in the United Kingdom” applied for income tax only and could not be interpreted as meaning that the employment should be treated as a trade which was separate to the diver and capable of being owned and carried on by another person, or by persons in common under partnership law. The only person who could be regarded as “carrying on a trade” within the meaning of s15 was the individual “performing the duties of the employment”, and so his employment income could not be regarded for tax purposes as trading income of a partnership in which he was a member. Although expenses could be deducted if they met the criteria to be deducted as expenses of the deemed trade, this did not mean that an actual trade capable of being carried on in partnership existed.

The tribunal cited the approach set out in Ready Mixed Concrete (SE) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 515, to determine whether an employment existed:

“A contract of service exists if these three conditions are fulfilled.

  • The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.
  • He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.
  • The other provisions of the contract are consistent with its being a contract of service.”

It considered that there was mutuality of obligation during each assignment, no right of substitution, and control by the diving company over the work undertaken by the appellant. Other relevant factors included the appellant’s entitlement to paid leave and sick pay, and the statement that the contract was one of employment, although that was not definitive. The tribunal therefore concluded that the relationship was one of employment and not a trade capable of being carried on in partnership.

Finally, the tribunal held that whether there was a partnership was largely irrelevant because the appellant’s activities did not amount to a trade which could be carried on by that partnership, and his employment could not be regarded as income which could be attributable to the partnership for tax purposes.  However, it explicitly rejected the appellant’s argument that that Protectacoat Firthglow Ltd v Szilagyi [2009] EWCA Civ 98 implied that it was possible to have a valid partnership in which the partners entered into employment contracts with a client. The decision in Protectacoat referred to the possibility of the partners each being engaged as employees: it did not, even in obiter dicta, find that the partnership itself could be engaged as an employee. It was well established that employment required personal service and so could not be undertaken in partnership. The tribunal also rejected the appellant’s argument that if the engagement with the diving company was not with the partnership, then he was required by s30 of the Partnership Act 1890 to account to the partnership for the profits made. Section 30 only obliged a partner to account for profits earned without consent in carrying on a business of the same nature, whereas the appellant was employed rather than carrying on a business.

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