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nose job

My client is a radio presenter and DJ.  He has a problem with polyps in his nose and needs surgery to relieve the condition.  As we all know he faces a very long wait to have this done on the NHS.

The problem is that the condition is seriously affecting his speech.  As his voice is his meal ticket does anyone think the costs of a private operation would be tax deductable?  He will go ahead if he thinks he will get tax relief  -  but will wait for NHS if not!

Should I write to HMRC for their 'approval' first? 

Elf

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Personally I think you have answered your own question 

"He will go ahead if he thinks he will get tax relief  -  but will wait for NHS if not!"

If he will continue to work while waiting for the operation on the NHS then it would definitely not be allowed.

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I agree with the above response...

... but you might want to take a look at the Parsons FTT case, as well as Prince v Mapp 46 TC 169.

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27th Feb 2013 14:33

There is an argument for tax relief in the sense that it is not necessary for health (he could wait) but like cosmetic surgery it improves his ability to get and retain work. I would be inclined to claim on the "cosmetic" status of the operation.

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28th Feb 2013 02:37

PARSONS holds the key.

Mr. Attazder's post gives the important link to the recent Parsons case. Can I be brief in this response, as it's rather late after a long day, and ask "Elf" to follow that link ( the Tribunal's reasoning is superb). The Parsons case explains lucidly what determines allowability. 

In essence there is insufficient information in Elf's question to determine whether the expense is allowable. I shall post again when I have more time.  Perhaps in the meantime Elf would kindly post again after reading Parsons.  Thanks.

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28th Feb 2013 09:19

Agree with George

but also look at Norman v Golder  and Murgatroyd v Evans-Jackson

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George has changed his mind! :) (slightly)

I don't think Parsons is all that relevant now. Parsons had a private op (necessary for his self-employment as a stunt man, but otherwise not necessary) that he could have had on the NHS, but would have had to have waited, which would have damaged his business. It's Prince v Mapp that's the key.

I actually agree with sijolees that the appropriate angle for a self-employed radio presenter/DJ would be to argue down the route referred to in the final paragraph of BIM50160 that the operation is only necessary for the furtherment of the business.

Harry Prince would have been able to claim the costs of his surgery if it hadn't been for the fact that he not only played his guitar as a trade, but also as a personal hobby.

It's the purpose of the expenditure that's important. If there's no private purpose (as with the presenter's teeth in the example in BIM50160), then the expenditure is incurred wholly and exclusively for the purposes of the trade.

Once you have an allowable purpose, the quantum of the expense isn't of any relevance. It's perfectly acceptable to fly first class (or have the operation done privately) even though economy class (or having it done on the NHS) is cheaper (or even free). There's a case on the point somewhere, but I can't find it. Anyone?

So if the only reason our self-employed radio presenter/DJ wanting his polyps removed is so that he sounds better on the radio and gets more work then it's an allowable expense. I do rather suspect that it's not the only reason though.

However, none of that may be relevant, as we all seem to have made one BIG assumption. We've all assumed that this radio presenter/DJ is self-employed.

In my experience radio presenters are employees, for whom there's then the further requirements that the expense should be necessary to the employment (ie that anyone doing the job would need to incur the expense) and that the expense is incurred in the performance of the duties of the employment.

Hell's going to freeze over before an employee can claim this sort of medical expense as an employment expense, quite frankly.

So let's start over. Come on OP. Which is it? Self-employed radio presenter? or employed?

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01st Mar 2013 00:49

PURPOSE

The STATUS ( ie employed or self-employed) factor is potentially crucial since, as GA says, it is extremely difficult to pass the "third test" ( the "NECESSARILY" test) which has to be passed where the taxpayer is EMPLOYED.  The first two "tests" ("wholly" and "exclusively") apply to both employed and self-employed taxpayers..   

I would however certainly not abandon all hope in an employment case. As yet, Elf's question hasn't really told us whether the cost of the operation was NECESSARY for his work as a  radio presenter and DJ.

My understanding is that the majority of radio presenters are SELF-EMPLOYED  - ascertained from one or two websites found by googling "radio presenters" ! -   this STATUS factor should be established FIRST.   Of course, and taking the word "job" to be neutral ( ie employment or self-employment), the words in the question of  "radio presenter and DJ" PROBABLY refers to ONE "job", but ( albeit less likely) there could be one employment as a radio presenter and one self-employment as a DJ, or vice-versa ( or two  employments or two self-employments - there are other variables) - hopefully for Elf, there is only one "job" as otherwise (s)he might have even more fun in store for HMRC !  Let us provisionally run with the probability of one self-employment, however.

As GA says, the key factor ( as always in fact) is the PURPOSE of the expense.  Solely private purpose = not allowable : dual purpose = not allowable : solely business purpose = allowable (even if there is some consequent "private" benefit  - ie as long as there is NO private purpose element at all, then the entire cost is allowable - the converse applies where the purpose is solely private, ie none of the cost would then be allowable even if there were some "business" benefit from the operation) - to reaffirm, PURPOSE, and indeed SOLE PURPOSE, is the key to allowability.  

Indeed, the PARSONS case ( a self-employment case, I stress) is a "must read", as it explains fully the importance of "PURPOSE" ( and it is a very recent case too).  But don't rule out a claim if the case we are being asked to consider IS an employment - much less chance of the cost being allowed admittedly, but certainly worth pursuing - the potential HMRC argument of "why didn't the employer pay for the operation if it was necessary" can be countered, albeit with difficulty.

One must not overlook the related aspects of  (1) percentage POSSIBILTY factor of HMRC challenge and (2) MATERIALITY , ie if one is happy that there are grounds for obtaining relief for the cost ( even if one is not 100 percent sure that one would win at Tribunal) then ethically it is perfectly acceptable, and in the client's interests, to claim the expense, and use the "white space" to fully explain the grounds for the claim.   

There really isn't enough information in the question to enable one to definitively answer Elf's question since the PURPOSE is not explained, but hopefully we will now get some response and further input PLEASE from Elf.   I see no merit personally in asking HMRC for advance agreement.

Another late contribution from me - I really must get a life !

Over to you please, Elf.

 

 

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By BKD
01st Mar 2013 08:41

Please ....

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01st Mar 2013 16:59

polyps

As he uses his speach for non business activity one would think he can not claim a private operation cost as tax deductable. But if his consultant can confirm that as he has to speak much more than an ordinary person, if this overdrive in speach has caused the problem then I would give it a go and claim it as a tax deductable expense on the premice that his business ocupation caused the health problem.

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NOSE JOB

Thank you for all your responses and sorry it has taken me so long to respond - I've been away for a few days.

I will go and read all the recommended cases and get back i.d.c.

Meantime I can confirm that my client is definitely self-employed.  He works as a freelance radio presenter and DJ so the only issue is whether the expense would be claimable. He is worried that his condition is affecting the clarity of his speech and may prevent him gaining work if it get worse while he waits for the NHS op.

Thanks

Elf

 

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nose job

Parsons makes very interesting reading.

While I feel inclined to think that there is a good argument for my client's claim I hesitate on the basis that he has not actually been turned down for work - yet - on the basis of his condition so there is not a complete 'fit' with the Parsons case.

Also the condition is clearly uncomfortable and so there would be a personal benefit from the operation.

I think I will advise him to wait and see if the situation worsens and then we can weigh it up.

Thanks again for all your help.

Elf

 

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05th Mar 2013 11:44

Personal message

Hi Elf, I shall send you a personal message again, please, very shortly, for the same reason as previously.Basil.

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