George Mantides Ltd v Revenue & Customs (INCOME TAX/CORPORATION TAX : Personal service companies (IR 35)) [2019] UKFTT 387 (TC)

FTT-Tax
George Mantides Ltd v Revenue & Customs (INCOME TAX/CORPORATION TAX : Personal service companies (IR 35))
[2019] UKFTT 387 (TC) · 2019-05-10
[14]For income tax purposes I therefore have to decide "What would have been agreed? – what would have been the terms of the notional contract?". That question has to be answered by reference to "the circumstances", which by virtue of paragraph 1(4):
“ include the terms on which the services are provided, having regard to the terms of the contracts forming part of the arrangements under which the services are provided." 73. The National Insurance provisions are in the Social Security Contributions (Intermediaries) Regulations 2000 made under section 4A Social Security Contributions and Benefits Act 1992 and provide that, on conditions which, for the most part, are the same as those in the corresponding provisions of ITEPA, an amount calculated by reference to the receipts of the intermediary is to be treated as paid by the intermediary to the worker as employment earnings. 74. The difference, however, lies in the words of the third condition - paragraph (c) - and in the absence of any equivalent to section 49(4). The relevant NI regulation reads: This Part applies where– (a) an individual (“the worker") personally performs, or is under an obligation personally to perform, services for another person (“the client"), (b) the performance of those services by the worker is carried out, not under a contract directly between the client and the worker, but under arrangements involving an intermediary, and (c) the circumstances are such that, had the arrangements taken the form of a contract between the worker and the client, the worker would be regarded for the purposes of Parts I to V of the Contributions and Benefits Act as employed in employed earner’s employment by the client. 75. In Dragonfly v HMRC [2008] EWHC 2013 (Ch) Henderson J held that there was a (regrettable) potential difference in the effect of these differing provisions. He said: “For whatever reason, the NIC test requires the arrangements themselves to be embodied in a notional contract, and then asks whether the circumstances (undefined) are such that the worker would be regarded as employed; whereas the income tax test directs attention in the first instance to the services provided by the worker for the client, and then asks whether the circumstances (widely defined in paragraph 1(4) in terms which include, but are not confined to, the terms of the contracts forming part of the arrangements) are such that, if the services were provided under a contract directly between the client and the worker, the worker would be regarded as an employee of the client. Nine times out of ten, perhaps ninety-nine times out of a hundred, the two tests will lead to the same answer. However, it cannot necessarily be assumed that this will always be the case.” “…I will also say that, if a choice were to be made between the two systems, I would regard the income tax approach as preferable. The problem with the NIC approach is that the "arrangements involving an intermediary" referred to in regulation 6(1)(b) cannot always be reformulated or collapsed into a notional contract between the worker and the client without a good deal of remoulding and evaluation of the surrounding circumstances, especially where (as in the present case) there is another party involved (such as DPP) and the arrangements include a chain of contracts with possibly conflicting provisions. In other words, the remoulding of the arrangements into a single notional contract will probably involve in practice very much the same process as the more open-textured income tax test expressly envisages” 76. Neither part suggested to me that this difference should make any difference in this appeal. 77. Thus I am required to determine whether the circumstances of Mr Mantides’ engagements with RBH and MMH were such that if his services were provided under a hypothetical contract between him and the relevant hospital, Mr Mantides would be regarded as an employee. All the circumstances including the arrangements with the intermediary are to be taken into account, and may affect both the terms of the hypothetical contract and whether it would give rise to an employment relationship. Employment – Case Law 78. In MKM Computing Ltd v HMRC SpC00653 I set out the principles which I derived from the authorities in relation to whether or not a person was employed. In this appeal the parties referred me to a number of other and more recent authorities. I set out below the principles I derived in MKM with additional references to those authorities. 79. (i) There is an irreducible minimum for a contract of employment. That minimum was described in Ready Mixed Concrete v Minister of Pensions and National Insurance (1967) 2 QB 497, where MacKenna J set out three necessary conditions for a contract of services: “(i) [the mutuality test] The servant agrees that in consideration of a wage or other remuneration, he will provide his own work in the performance of some service for his master; (ii) [the control test] 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; (iii) [the inconsistency test] the other provisions of the contract are consistent with its being a contract of service.” 80. These tests are a good starting point when considering whether a contract is one of employment and it is important that mutual obligation and control are identified before moving on to consider other factors (see Buckley J at paragraph 23 in Montgomery v Johnson Underwood Ltd (2001) EWCA Civ 318 ). Whilst the tests are necessary conditions for employment the nature and extent of the requirements for mutuality and control are not rigid but depend upon the circumstances. MacKenna J’s third condition has to my mind much in common with the overall picture and in-business-on-his-own-account tests I describe below and the use of various indicia. The mutuality test and the control test require some further comment. (ii) The Mutuality Test . 81. There are two aspects to this test: first that there must some mutuality of obligation, second that the contract must be for “his own work” – for the worker’s personal service. That second aspect gives rise to the question as to whether a right for the taxpayer to substitute another person in his place can prevent a contract being one for service. I discuss that under Substitution below. 82. In relation to the question of mutuality of obligation I concluded in MKM : (i) For there to be an employment contract there must be a contract. That requires some mutual obligations: an obligation on the one hand to work and on the other to remunerate. (ii) A contract cannot be an employment contract unless the `employee’ is obliged to provide his labour. (iii) An obligation on the employer to provide work or in the absence of available work to pay is not a precondition for the contract being one of employment, but its presence in some form (such as for example an obligation to use reasonable endeavours to provide work, to allocate work fairly, or not to remove the ability to work e.g. by removing the pupil to be taught) is a touchstone or a feature one would expect to find in an employment contract and whose absence would call into question the existence of such a relationship. 83. The parties referred me to a number of employment law cases which dealt with a worker who works intermittently for the same employer. In such cases if it is found that there is an umbrella contract for a longer period which is punctuated by shorter periods of work, it may be then found that a period of continuous employment with the same employer is established for the purpose of certain employment law remedies. 84. The authorities indicate that for such an umbrella contract to remain in force there must be some minimum mutual obligation which continues during the breaks in work engagements, but "whilst the fact that there is no umbrella contract does not preclude the worker being employed under a contract of employment when actually carrying out an engagement, the fact that a worker only works casually and intermittently for an employer may, depending on the facts, justify an influence that when he or she does work it is to provide services as an independent contractor rather than as an employee." and the absence of mutuality outside the period of work may shed light on the character of the relationship within it: it could indicate a degree of independence incompatible with employee status ( Secretary of State v Windle [2016] EWCA Civ 459 , per Underhill LJ at [14 and 23] approving what had been said in Quaishi . 85. Mr Mantides referred me to Clark v Oxfordshire. This concerned "bank nurses" available to be called on to work in a casual capacity to fill a temporary vacancy. The appellant worked intermittently for a hospital authority for three years and claimed continuous employment during that period for the purposes of an unfair dismissal action. Sir Christopher Slade in the Court of Appeal said that no "umbrella" contract could exist "in the absence of mutual obligations subsisting over the entire duration of the relevant period". The lower tribunal had found that there was no mutuality (no obligation to offer or accept work) in the period in which the nurse did not work, and as a result the Court of Appeal held that there was no umbrella contract. 86. But I do not consider that this case offers much assistance in relation to the question of whether each separate engagement was an employment because at the end of its judgement the Court allowed the possibility that each separate engagement could be an employment (and remitted the appeal back to the tribunal to decide that point). 87. I was also referred to McMeechan v Secretary of State for Employment 1997 ICR 549 . There, Waite LJ said that when considering the terms of an individual self contained engagement the fact that the parties were not obliged in future to offer or accept another engagement was neither here nor there. 88. I conclude that the lack of any obligation to provide work after the end of a fixed term contract does not mean that there is insufficient mutuality of obligation during the term, and in the context of such an engagement it is but a weak pointer away from employment. 89. These cases did not affect my former conclusion (see above) that in relation to a particular engagement an obligation on the employer to provide work or in the absence of available work to pay was not a precondition for the contract being one of employment, but its presence in some form is a touchstone or a feature one would expect to find in an employment contract and whose absence would call into question the existence of such a relationship (iii) Substitution. 90. The contract must be for personal service. Nevertheless a limited or occasional power of delegation or right to substitute another person may be consistent with a contract of personal service. ( Usetech : paras 49-52). 91. Mr Mantides referred me to Primary Path v HMRC [2011]. There the tribunal summarised conclusion in Dragonfly v HMRC [2008] EWHC 2013 (Ch) as being that if there is a general and unqualified right for the worker to send along a substitute, that is incompatible with employment, and that determines the matter; something less than that is unlikely to be determinative but a contract which has at least some recognition that a substitute can be supplied must "seriously be considered" as not being employment [68 and 69]. I agree and would add that the more qualified that right the less serious is its effect on the overall picture. (iv) Control. 92. MacKenna J’s control condition was “control in a sufficient degree to make that other the master”
. That is no indication that absolute control is required. 93. In Autoclenz v Belcher [2011] UK SC 41 , the Supreme Court held, at [19], that the issue was whether the contractual right of control existed to a sufficient degree irrespective of whether it was exercised. 94. In Morren v Pendlebury Borough Council (1965) 1 WLR 576 Parker C J noted that the authorities had stressed the importance of the factor of superintendence and control, but said that in the case of a professional person there can be cases where there is no question of the employer telling him how to do the work so that the absence of control and direction “in that sense” can be little, if any, use as a test. 95. It seems to me that something which can be called control is a necessary feature of an employment relationship even for a skilled employee; but the nature of the power of control which suffices may differ with the nature of the job; the company will tell the ship’s master where to take the ship; the school governors may tell the headmaster or headmistress how many staff he or she may engage. 96. In Ian Mitchell FRCS v HMRC [2011] UKFTT 177 (TC) , the tribunal, citing the judgement of the High Court in Dragonfly concluded that control was relevant in determining whether a skilled professional was an employee, but that the test was not decisive and depended upon the degree of control. It noted that directing the thing to be done and the place at which it was to be done was something which would arise in a contract with an independent contractor such as a plumber but was nevertheless a factor which should be taken into account. It noted that in Dragonfly, where there was a degree of supervision and quality control of the worker which went beyond telling him when and where to work, the regular appraisal and monitoring of a professional was held to be sufficient control. 97. In MDCM Ltd v HMRC [2018] TC 6400, the tribunal said that “control” included the power of: deciding the thing to be done, the way in which it should be done, the means to be employed in doing it, the time when, and the place where it should be done. It found, at [49], that the engager in that case "directed what" the taxpayer had to do during a shift, but that that was merely what had to be done on the site which the taxpayer supervised; it regarded that as insufficient control. 98. I conclude that there must be something in the contract which can reasonably be called a right for the employer to control the employee. But such a right need not be a right to control every aspect of what is done: what is done, how it is done, when and where it is done; instead a restricted right may be adequate, and on the other hand mere control over what, when or where may be in the circumstances insufficient to support a finding fo employment. MacKenna J accepted that in many cases the employer or controlling management have no more than a general idea of how the work is done and no inclination to interfere, but “some sufficient framework of control most surely exist” (paragraph 19), and at paragraph 23 indicated that tribunals should exercise appropriate latitude in determining the question of control. Further whilst some element of control may be sufficient to pass the second of MacKenna J’s necessary conditions, the degree of control will affect whether, assuming that that condition is satisfied, the overall picture is one of employment: the greater the degree of control, the more strongly employment is indicated. 99. (v)Having considered whether these conditions are satisfied, the tribunal should then consider all the circumstances and evaluate where the balance lies. In doing so may use the following tests and guidance. 100. (vi)To ask whether the taxpayer is in business on his own account? “In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person’s work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and making an informal, considered qualitative appreciation of the whole … Not all details are of equal weight … The details may also vary in importance from one situation to another.” ( Hall v Lorimer (1993) 66 TC 349 at 375F.) 101. (vii) The authorities indicate that the consideration of certain indicia which may point one way or the other may be helpful in considering that picture. ( Lee Ting Sang v Chung Chi-Keung 2 AC 374, and Hall v Lorimer ). Those indicia include those mentioned by Cooke J in Market Investigations . The following may be relevant although the extent to which they have swayed the thinking of different tribunals has varied with the facts of each particular case:- (a) does the taxpayer provide his own equipment? (b) does the taxpayer hire his own helpers? (c) what degree of financial risk does the taxpayer bear and what opportunity for profit does the taxpayer have? In this regard the tribunal in Marlen v HMRC [2011] UKFTT 411 accepted that the appellant carried the financial risk of termination of the contract without compensation. It found on the evidence that the risk was not great [55] but sufficient to point to self employment; (d) what degree of responsibility for investment and management does the taxpayer have? (e) is the taxpayer part and parcel of his “employer’s” organisation (see Hall v Lorimer ) although in Marlen at [60] the FTT did not consider it significant that the worker was part of a team comprising employees and contractors; (f) the degree of control to which the taxpayer is subject (rather than the mere existence of a right of `control’); (g) termination provisions – termination on notice may be a pointer towards employment in some cases (it was found to be so in Morren v Swinton (1965) 1 WLR 576 but found to be neutral in McManus v Griffiths 1997 70 TC 218). In M arlen the tribunal found that the fact that the engager and the worker treated the contract as being capable of termination mid way through with little notice and no payment in lieu of notice (sending the worker home without payment when the computers were down) was a compelling indicator of non employment [61]. In MBF Design Services v HMRC [2011] UKFTT 35 (TC) the appellant argued that the right of cancellation at any time on written notice was inconsistent with mutuality of obligation. The tribunal at [61] considered that the right to cancel without notice was “foreign to the world of employment” ; (h) the intention of the parties may have some relevance. In Dragonfly Henderson J said that intention may be relevant in a borderline case; but that in many cases it will be of little if any significance [54] and that the weight to be attached to statements of intent in the notional contract would normally be minimal. (i) whether there was payment for the normal benefits of employment: pensions, sick pay, holiday pay. In MDCM the tribunal found that the flat rate payments, the lack of a notice period and the lack of entitlement to employee benefits was inconsistent with employment . The Hypothetical contracts 102. I now turn to consider what the terms of the hypothetical contract between each hospital and Mr Mantides would have been. I shall then consider whether, in the circumstances I have identified, had Mr Mantides been engaged under that contract, he would have been an employee. Unless the contrary is indicated I reach the same conclusion in relation to each contractual term of the hypothetical contract on the basis of both the income tax test (what would have been agreed?) as I do on the basis of the NI test (embodying the arrangements involving the intermediary in a contract between the worker and the hospital). RBH 103. In find that the contract between RBH and Mr Mantides would have contained the following terms: (1) it would have been for a fixed term (2) it would be terminable early on at least one week's notice on either side. I come to this conclusion because there is no provision for early termination in the Locum Booking Confirmation, and because the suggestion from Mr Jones that 6 to 8 weeks notice was required for taking time off indicates that some reasonable notice of termination would have been expected by the hospital and it is likely that a corresponding period for notice to Mr Mantides would have formed part of the agreement between DRC/RBH and GML. I reach this conclusion despite Mr Jones’ statement that the contract could be ended at any time by the urology department and that if the hospital’s priorities changed Mr Mantides’ “employment” would be stopped. I do so because since I did not hear from Mr Jones, it was not clear to me from those answers that no notice would have been given; (3) it would be for the personal services of Mr Mantides to work as a urologist grade SpR. Mr Mantides would have had no right to provide another person to step into his shoes. This reflects my conclusions in relation to the arrangements with RBH at [55] above; (4) it would require Mr Mantides to conduct the services notified to him by the weekly rota in the facilities provided by the hospital; (5) it would require Mr Mantides to be available for 10 half day sessions in each week. I reach this conclusion because the Locum Booking Confirmation says that standard hours would be ‘as per rota’, and a standard rota, on Mr Jones’ evidence was 10 half day sessions. But with the consent of RBH he could take holidays and miss occasional sessions. This reflects Mr Mantides' evidence that he frequently asked for, and took, Friday afternoons off, and that he had an 11 days of holiday while at RBH. It also reflects in part Mr Jones’ statement that on a period of notice Mr Mantides could take time off. It would, in my view, have been part of the arrangements with GML. (6) RBH would agree to use reasonable endeavours to provide 10 half hour sessions in each week. Although there is no provision to this extent to this effect in the Locum Booking Confirmation, I so find because I concluded that there was a mutual understanding either between DRC as agent for RBH and GML or between GML and DRC and DRC and RBH that Mr Mantides’ services would result in between 30 and 40 hours per week, and it would be a breach of such an understanding not to use some endeavours to make up a normal rota. (7) RBH would pay Mr Mantides the agreed rates per hour worked. (8) Mr Mantides would attend the morbidity and mortality meetings. Although there is no express requirement in the Locum Booking Confirmation for Mr Mantides to attend such meetings, I think it highly likely that the hospital would schedule attendance at these meetings as part of the sessions on the rota. Thus the arrangement under which Mr Mantides’ services were provided would encompass attendance at these meetings and as a result the same obligation would arise to attend them under both the income tax rest and the NI test. (9) There would be no entitlement to holiday pay, sickness pay or pension benefits. Would this have been a contract of employment in the circumstances? 104. Personal service : the contract would oblige Mr Mantides to provide his own work and skill. It would be a contract for his personal service. It is a pointer towards employment. 105. Control : Mr Mantides would be subject to a measure of control by the hospital. It would not be control of all aspects of his work but some of his activities would be dictated in part by the hospital or to some degree supervised by it. 106. He would be obliged to conduct the sessions in the mornings or the afternoons specified in the rota; he would have to deal with the patients on the list. This was a measure of control over what he did and when he carried out his work, but it points only weakly towards employment 107. He would be obliged to work in the rooms and theatres provided by the hospital. I see this however as only a weak indicator of control: those rooms were the only place his work with the hospital's patients could sensibly be conducted. A self-employed decorator is not subject to the relevant kind of control because he can only decorate the room he has contracted to paint. 108. Mr Mantides's work would not be closely supervised: he was not told how to deal with outpatients or how to operate. But in the case of an expert professional this does not seem to me to be a factor which points strongly away from the existence of employment. That is because the work of a professional employee will normally be overseen only "at a distance" by others, so that when problems arise corrective action is taken. I accept that there would be an accumulation of feedback from the other staff which would enable some monitoring of his work. The automatic referral of cancer patient management to the multidisciplinary team provided some measure of the kind of oversight which may in these circumstances be regarded as control. 109. Taking these factors together I conclude that, although tight control was not exercised over what Mr Mantides did, the hospital would be entitled to exercise sufficient control to pass the irreducible minimum test in Ready Mixed Concrete . But overall I do not consider that the level of conrol points strongly towards employment. 110. Mutuality : there would in my view be sufficient mutuality of obligation to satisfy this condition. There would be an obligation to work and obligation to pay for the work done. There would be no obligation on either party to work or provide work or pay after the end of the contract nor would there be an absolute obligation on the part of the hospital to provide 10 half day sessions per week during the period of the contract. Those latter factors cast some doubt on whether this would have been an employment contract, but I have found it likely that the hospital would have been under a duty to use reasonable endeavours to provide those sessions during the period of the contract, and that, when taken with the obligations to work and to pay, is, in my view is sufficient to satisfy the requirement for mutuality and points towards employment. 111. Other factors 112. During 2013/14 Mr Mantides’ services were provided through GML to three hospitals. The successive provision of services to different clients may point to the carrying on of a business on one’s own account. The more engagement the stronger the pull: in Hall v Lorimer Mr Lorimer worked for 20 engagers under engagements often lasting no more than a day: that was a pointer to being in business on his own account. Mr Mantides’ three longer engagements do not point to self employment. 113. Had the hospital sent Mr Mantides batches of patients to be seen and dealt with in his own consulting rooms and operating theatre, furnished with his own equipment and helpers, that would have been a strong pointer towards self-employment. But given the circumstance that what was plainly required by the hospital was only his skill and expertise applied to patients who came to the hospital and the fact that patients’ records would be held on the hospital computer system, I find the fact that he used the hospital’s equipment and helpers points only weakly towards employment. 114. Mr Mantides would bear the risk that his contract terminated early (albeit in my judgement on some notice) and of having to find new work. He would also bear the risk that the number of hours he worked each week would be less than 37½ (although that risk would be mitigated by the hospital’s obligation to use reasonable endeavours to provide 10 seesions a week). He would negotiate his rates of pay. He would bear the costs of training and complying with GMC registration requirements and of travel and accommodation when away from home. Conversely he would receive the benefit when he worked longer hours. These factors point only weakly to self-employment: most are risks borne by a salaried employee. 115. HMRC suggest that if he were engaged directly he would not need to bear the cost of insurance since he would be covered by the NHS indemnity scheme. However it seemed to me that the indemnity scheme applied only to employees of the NHS, and the notice explaining the scheme indicated that self employed doctors could not benefit from it. Thus only if he were employed would the absence of this cost point towards employment. Given that the MMH contact required GML to carry insurance I think that the better resolution of this circle is to assume that the direct contract also required insurance cover and that this cost would be borne by Mr Mantides. I do not think however that this adds greatly to the strength of the pointer towards self employment. 116. The instructions to "carry on as usual" in the Locum Booking Confirmation may indicate some integration with the hospital organisation as did the fact that Mr Mantides did some on call work at RBH, but I do not think that it could be said that Mr Mantides was part and parcel of the hospital's organisation. He neither trained nor managed others, and he would attend only one regular meeting. This consideration points weakly to employment. 117. I find that the degree of control that would actually be exercised over Mr Mantides is a neutral factor. In practice it appeared that he was told when and where but not how to work. 118. I have found it likely that the contract was terminable at least a week's notice. That is not an indication of self-employment. 119. The lack of any employee benefits points away from employment. Although the rate of pay was said to include holiday pay that was nevertheless only an element of pay for hourly work. It was not pay for not working. 120. Taking all these factors together and standing back I conclude that had Mr Mantides' services been provided under a contract with RBH he would have been an employee (both on the income tax and the NI tests). MMH. 121. In my judgement the hypothetical contract between MMH and Mr Mantides would have contained the following terms: (1) it would have been for a fixed term; (2) it would be terminable early on one day's notice on either side; (3) it would be for the personal services of Mr Mantides to work as a urologist grade SpR, but permit a substitute to undertake the work if the agency, after consultation with the hospital (in which consultation the hospital had no veto) considered that the substitute was suitable on the basis of the hospital’s usual criteria. (I do not consider that the warranty in clause 13.7 of the agreement between MMH and GML that the substitute be a director of the company can be reflected in the notional contract). (4) it would require Mr Mantides (or the substitute) to conduct the services notified to him by the weekly rota in the facilities provided by the hospital; (5) it would require Mr Mantides (or the substitute) to be available for 10 half day sessions in each week (6) MMH would have no obligation to provide, or try to provide, any sessions in a week. The contract between MMH and GML contained no such obligation and its absence in that formal written contract indicates to me that it should be absent from the notional contract. (7) MMH would pay Mr Mantides the agreed rates per hour worked. (8) Mr Mantides would attend the morbidity and mortality meetings. I so conclude for the same reasons as I gave in relation to the RBH contract. (9) There would be no entitlement to holiday pay, sickness pay or pension benefits. (10) Travelling time between the hospital’s sites would be paid by MMH. Other travel and accommodation expenses would not be paid. Had Mr Mantides worked under such a contract would he, in the circumstances, have been an employee? 122. The circumstances of Mr Mantides's work for MMH differ in three material respects from those of his work for RBH: (1) under the notional contract with MMH Mantides would have a right to send a substitute if that substitute was approved by the agency. This right would not in my view be illusory: it could have been exercised and taken effect, and although its counterpart in reality was not exercised its existence would be a relevant pointer away from employment. The qualified nature of the right, and the fact that Mr Best's evidence indicated that the hospital might have resisted its exercise convinced me that the contract could, just, be described as one for Mr Mantides's personal service, but the existence of the right points away from employment. (2) The notional contract with MMH could be terminated on one day's notice. Whereas I found that at least a week’s notice that had to be given under the RBH contract, one day's notice is almost illusory and does not point to employment. (3) The notional contract with MMH would have contained no obligation on MMH to try to provide either 37½ hours or 10 half day sessions in a week. There would not have been even a qualified obligation to provide work. That points away from employment. 123. In other respects, the circumstances of the MMH engagement would be the same as those of the RBH engagement, and I reach the same conclusion as to the import of the other relevant factors as I do in relation to RBH. But standing back and looking at those factors together with the three noted above I find that the balance lies on the side of self-employment (both as regards the income tax and the NI tests). 124. Conclusion 125. I allow the appeal in relation to the work at MMH and dismiss it in relation to the work at RBS. 126. The appeal is formally adjourned to permit the parties to agree the figures. Each has leave to ask for a hearing to deal with the calculations if they cannot be agreed. Right of Appeal 127. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. CHARLES HELLIER TRIBUNAL JUDGE RELEASE DATE: 13 JUNE 2019