Upper Tribunal Tax and Chancery Chamber

UT/2023/000068 - [2024] UKUT 00262 (TCC)

Fecha: 25-Abr-2024

Factor (12)

Factor (12)

95.

The final factor referred to by the FTT was at FTT[134(12)]:

(12)

Mr Barnes was not financially dependent on Sky during the relevant period, notwithstanding the fact that the income from Sky accounted for some 60% of his overall turnover. In absolute terms, his income from the Times/Sunday Times was by no means modest. His refusal to enter into a new contract with Sky after 2019 to cover 3 second division matches was another indicator that Mr Barnes was not financially dependent on Sky. There was no lack of contacts asking for Mr Barnes’ services and he had no need for an agent. If Sky had not procured exclusive right for Mr Barnes’ services as a broadcaster during the relevant period, through sound management of his time, Mr Barnes would most probably have found another outlet for his talent, owing to his personal reputation as a world-renowned expert on rugby. The reputation is personal to Mr Barnes, which was not, and is not, dependent on Sky.

96.

Mr Stone described this as perverse finding, given that the Sky income was 60% of SLB’s turnover. He also argued that, on the basis of Atholl House, this was not a permissible factor to be taken into account, because the precise percentage could not have had not been shown to be known to Sky at the time when the hypothetical contract began. Finally, he said that the reference to what happened in 2019 was again inadmissible as it related to a period after the hypothetical contract.

97.

We do not agree that the FTT’s finding was perverse, particularly given that in absolute terms the income from non-Sky sources exceeded £150,000 in each year in the relevant period: FTT[65]. It was within the range of reasonably available decisions, particularly since “financial dependency” is a somewhat elastic concept.

98.

We accept that, following Atholl House, a fact must have been known or reasonably available to both parties in order to form part of the admissible factual matrix at the Third RMC Stage. However, in this case Sky will have been aware of Mr Barnes’ most significant work commitments outside his Sky contracts, namely his regular columns for the Times and Sunday Times. It is clear that, as matter of principle, financial dependency is a relevant factor. In Hallv Lorimer, Nolan LJ stated that “the extent to which the individual is dependent upon or independent of a particular paymaster for the financial exploitation of his talents may well be significant”: [1994] 1 WLR 209, at 218C. We consider that the FTT was entitled to take this into account as a relevant factor.