Are Cruise Ship Entertainers Employees?

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If they weren’t on cruise ships HMRC would probably argue that they were employees but in the case of cruise ships they argue the opposite.

Pete Matthews (1) Keith Sidwick (2) v Revenue & Customs [2011] UKFTT 24 (TC)

Mr Sidwick was a musician and played piano on a series of cruise ships. Mr Matthews was a juggler, similarly entertaining passengers on cruise ships. Both were subject to a close degree of control by the ships officers but the First-tier Tribunal found that this degree of control was required by the context of a cruise ship.

The First-tier Tribunal concluded that the entertainers were not employees ‘…but earn their living by entering into a series of separate engagements with a number of different cruise lines in a similar way to actors…’

The reason why HMRC argued against employment was to stop a claim for Seafarers Earnings Deductions.

To get the deduction you must:

  • work on a ship. Oil rigs and other offshore installations aren’t ships for the purposes of Seafarers’ Earnings Deduction – but cargo vessels, tankers, cruise liners and passenger vessels are
  • work all or part of the time outside the UK. This means that for each employment you must carry out duties on at least one voyage per year that begins or ends at a foreign port
  • be resident in the UK or resident for tax purposes in a European Economic Area (EEA) State (other than the UK) – find out more by following the link ‘Check your residence status’ in the section below

You get the deduction from your earnings as a seafarer if you have an ‘eligible period’ of at least 365 days that consists mainly of days when you are absent from the UK.

From 6 April 2013 the rules that determine if someone is resident in the UK for tax purposes have been put on a statutory basis. These rules are known as the Statutory Residence Test (SRT).

Where should you pay tax? (Statutory Residence Test)

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Historically some of the key cases related to Pilots.

Shepherd v Revenue and Customs Commissioners [2007] BTC 426, [2006] EWHC 1512 (Ch)

A BA pilot had a home in Cyprus and spent 80 days in the UK (well below the 183 day test) in 1999/2000. However, he had ties to his former matrimonial home in Berkshire and the UK was his base for international flights, HMRC won the case on the basis that he had not ‘left the UK’.

Grace v Revenue & Customs [2008] Spc 663

Mr Grace was also a BA pilot, he claimed to have relocated to South Africa. Mr Grace won his case because he was set out the facts in a way that convincingly showed his links to his new country of residence. Although subsequently the outcome was reversed.

Gaines-Cooper Case

Robert Gaines-Cooper was a Multi Millionaire, based in the Seychelles but subject to the UK tax because of family ties

These cases demonstrate the problems of deciding residency, so on the 6th April 2013 a new Statutory Residence Test was introduced.

This test is relevent not only to Aircrew but also to:

  • Ships Crew
  • Lorry Drivers
  • Coach Drivers
  • Sales People
  • Travel Industry

UK ties are likely to be a key issue:

  1. Family Tie – Relevent relationships include Spouse, Child under 18, Common Law partner resident in the UK. However, Children in Full Time education are ok provided they don’t spend more than 21 days in the UK outside of term time.
  2. Accomodation Tie – A property in the UK where they can live for 91 days a year or 16 days if its owned by a close relative.
  3. Work Tie – Work in the UK for at least 3 hours a day for 40 days a year
  4. 90 Day Tie – Spend more that 90 days in the UK in this tax year or the previous tax year or the year before that
  5. Country Tie – the midnight test for the greatest number of days

On the positive side at least HMRC have been very specific in their guidance, these are are very specific tests!