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Tax tribunals crack down on duality of purpose

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30th Aug 2013
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Accountants whose clients deduct business expenses from their tax bill need to ensure that the expenses are solely for the purpose of trade, two recent tax cases have shown.

It sounds like common sense but two tribunal decisions - HMRC v Tim Healy [2013] UKUT 337 (TCC) and Philip McMahon v HMRC [2013] UKFTT 403 (TC) - have once again shown that distinguishing between business and personal expenses for tax purposes can be tricky. One tax expert said that the Healy case could have implications for many self-employed people.

Tax adviser Gabelle has analysed the following two cases: 

RCC v Healy

Tim Healy, a well known actor who has appeared in 'Auf Wiedersehen, Pet', 'Benidorm' and 'Waterloo Road', claimed a deduction for costs in connection with accommodation expenses on a flat that he took on a nine month tenancy while he appeared in the Billy Elliot musical in London's West End. The decision was reached on the basis that he had retained his home in Cheshire, and that the only reason he took the tenancy was because he was working in London.

In 2012, Healy won a partial victory in a first-tier tax tribunal against HMRC after it was found his accommodation expenses claim was tax deductible.

Healy, who was appearing in the musical, managed to recoup £32,503 in accommodation expenses which were "wholly and exclusively for the purposes of his profession".

At the first tier tribunal Healy was successful in his claim for living expenses as it was recognised the sole purpose of the London rental property was to facilitate his work, but Healy failed to prove expenses for subsistence (£4,094) and taxi fares (£4,080) fell within that remit.

But judge Barbara King was unconvinced that all his taxi trips had been for the purpose of his work, and could well have also been for socialising as revealed in his bank statements which showed he had been visiting the Groucho Club.

Gabelle says that the first-tier tribunal's decision was "prgamatic."

They did not consider Healy had moved home and it was not feasible for him to commute between performances. If he had simply stayed in a hotel for nine months a claim for hotel expenses would not have been challenged so they took the view the costs of renting the apartment, which were cheaper than a hotel, should be deductible.

HMRC appealed against this decision to the upper tribunal. He argued that the first-tier tribunal had erred in law in failing to consider, or consider properly, whether Healy had a dual purpose in incurring the expenditure in question, namely to meet his ordinary needs for warmth and shelter as well as his stated business purpose.

Healy was not present for the upper tribunal hearing who having considered the facts agreed that the first tier had not considered fully the duality point and that the case should be referred back to the first tier so that they can reconsider the facts including ascertaining from Healy his intentions and reasons for renting the property.

Tax consultant Nichola Ross Martin, who advised Healy on his original appeal to the lower tier tribunal, said the case will affect a lot of self employed individuals. "However, and quite bizarrely in our opinion, if you are what HMRC accepts as an itinerant worker (typically a jobbing builder) then you are allowed tax relief for your short-term accommodation costs because the nature of your business means that you travel to work away from home. We find it very difficult to see why an actor is not treated in the same way as an itinerant worker, and why say the barrister in the above example might also be treated any differently."

The wholly and exclusively test

The upper tribunal agreed with HMRC, and in outlining their decision presented a useful summary of of the principles of the wholly and exclusively test.

The following principles can be derived from this analysis of the authorities:

  • The "exclusively" limb of the "wholly and exclusively test" entails examining whether the expenditure in question has a dual purpose. If the expenditure is not solely for a business purpose it will not be deductible (Bentleys, Stokes & Lowless, Mallalieu v Drummond)
  • Expenditure on items that outside a business context simply meet ordinary needs can be regarded as having solely a business purpose such as food and drink in the context of business lunches (Bentleys, Stokes & Lowless), hotel accommodation in the context of business trips or conferences (Elwood v Utitz), accommodation for an itinerant trader (Sean Reed)
  • Consequently, there is a distinction between effects which are aimed at (the purpose of the expenditure) and those which are incidental to that aim; the latter do not necessary colour the former, even if they are inevitable (Elwood v Utitzand the third passage from Mallalieu v Drummond cited in paragraph 50 above)
  • Expenditure will not be deductible unless there is a clear connection between the expenditure incurred and the trade or profession in question (Caillebotte v Quinn, MacKinley v Arthur Young, McClelland Moores), and a distinction must be drawn between living expenses and business expenses (Newsom v Robertson)
  • The fact that an item of expenditure may be necessary for an individual to conduct his trade does not mean that it passes the "wholly and exclusively" test (Newsom v Robertson)”

Philip McMahon v HMRC

Philip McMahon worked for a large recruitment consultancy which he left to set up his own consultancy. When he left he took with him details of his employer’s clients in breach of his contract of employment. His former employer took action against him as a result of which he agreed to pay his former employer £100,000. He also incurred legal costs of £15,354.70.

McMahon argued that he incurred the expenditure in order to preserve his business, and on this basis the expenditure should be deductible against his profits. However, HMRC contended that the sum paid was at least partly referable to his breach of contract. As such there was duality of purpose and the expense was not incurred wholly and exclusively for the purposes of his trade.

The first-tier tribunal decided that the expense was incurred for two purposes, first to preserve his business, and secondly to defend and settle the proceedings including the claim for damages for breach of contract and breach of fiduciary duty.

This means that there is duality of purpose and the expense is not deductible against profits.

Replies (13)

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By User deleted
30th Aug 2013 15:18

Sloppy wording

Accountants whose clients deduct business expenses from their tax bill need to ensure that the expenses are solely for the purpose of trade, two recent tax cases have shown

I sincerely hope that there are no accountants here who deduct expenses (business or otherwise) from their clients' tax bills :)

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By Mallock
02nd Sep 2013 12:29

Common Sense

Sometimes I wonder at the stupidity of the law and those who write and apply it.

So now someone on a contract must stay in a hotel or guest house at considerably greater expense rather than taking a short term let on a flat. It makes no sense to me on a common sense or reasonableness basis although I accept that duality of purpose has always been an issue.

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7om
By Tom 7000
02nd Sep 2013 14:04

mis wording

 

Can someone translate this bit to Geordie for me

Expenditure on items that outside a business context simply meet ordinary needs can be regarded as having solely a business purpose such as food and drink in the context of business lunches (Bentleys, Stokes & Lowless), hotel accommodation in the context of business trips or conferences (Elwood v Utitz), accommodation for an itinerant trader (Sean Reed) 

 

Aufweidersein and Thanks Pet

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By ds
02nd Sep 2013 14:14

But why can it not be argued that...

...if someone is working away from home they will need somewhere to live, if regular commuting home on a daily basis is not possible and that could be anything from; a tent, caravan, mobile home, apartment, house, castle or mansion. Surely it is reasonable to claim for something that is similar to what is normally home and so claiming to live in a mansion where your permanent home is a small flat would be unreasonable. Also I can not see the advantage to HMRC to allow claims for a hotel, which might be five or more times as much, than for an apartment. The expenses will be considerably larger and so the corresponding corporation tax much less. Seems like they are shooting themselves in the foot.

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By Kingston22
02nd Sep 2013 14:26

I hope sense prevails

I hope this doesn't set the wrong default precedent for all contract workers who work away from home for 6 to 12month period (for example).  I know IT workers who live in Scotland or the North of England and work for 6month contracts in London, so it makes sense for them to rent than pay hotel bills.  I'm sure they will be claiming their rent as an expense. So does this mean they can only claim 5/7ths of the total expense (assuming they visit home on weekends), or would no claim be permitted at all on the basis they weren't in a hotel?

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By User deleted
02nd Sep 2013 15:11

Hotel bills?

If you follow this to its (absurd) logical conclusion, hotel bills should also be excluded. Why? Because staying in a hotel has exactly the same duality of purpose as letting an apartment, namely that it provides warmth and shelter.

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By kfh
02nd Sep 2013 15:35

Another nail in the cofin for contractors

This appears as perverse as me having to to pay tax on a small rented flat as benefit in kind (as a director) when working on contract in London. As the flat overlooked Wormwood Scrubs (the prison not the park), the central line and the Westway and I commuted home at weekends I could never work out were the benefit to me was. I did not get questioned on duality of purpose.

It would be interested to see the tax claims from the various senior civil servants paid as contractors and have they had similar problems?

With IR35 still a contentious area one wonders if HMRC realise they are making contracting very unattractive, having said that they are probably not bothered about the potential impact on UK PLC.  I, for one, have given up on the delights of earning vast amounts of money, and spending it, while contracting and weekly commuting, now earn far far less,  spend less, pay very little in tax,  stay at home and am far happier with the lack of stress and worry about whether that contract three years ago was really IR35 exempt and the potential financial impact if HMRC decide it was not.

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By markdunham1
02nd Sep 2013 18:57

Im self employed

Does this mean I wont be able to claim the £12.80 I spent on bacon sandwiches while working in Turkey? Gutted !

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7om
By Tom 7000
03rd Sep 2013 14:33

and...

what about the Turkey sandwich I bought in Bacon GA USA $3.25...

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By blueskies
03rd Sep 2013 18:44

MP's

So presumably the same kind of logic must apply to MP's with their long term accommodation (ie 2nd homes) in London.  After all a 2nd home is simply a cheaper version of a rented one. So a BIK charge is the fair way to go?

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By Gone Sailing
03rd Sep 2013 19:37

Apportionment

Whatever happened to apportionment?

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By User deleted
04th Sep 2013 07:48

Apportionment ...

... works only if you can identify specific business and non-business elements, eg motoring costs, where each journey, period of use etc is wholly and exclusively business or non-business. So there is no duality. In cases such as the above, the argument is that at any one time the accommodation has a dual purpose - it may well be required for the individual to carry out his duties etc but at the same time it is providing him with warmth, shelter etc, so there is duality of purpose. Point is that an asset can be used W&E for different purposes at different times without having duality of purpose - but if it is used for different purposes at the same time, it makes it much harder to argue W&E.

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By raycad
04th Sep 2013 11:08

But, but, but...

....how does this square with the guidance in HMRC Booklet 480, para 21.24 (reproduced at the end of this posting)?  This states that a full deduction will be due for cost of a flat etc if it is cheaper than a suitable hotel.  More to the point, it also states explicitly that an apportionment may be allowed where, for example the employee's family reside in the flat etc.

To answer my own question, although I haven't read the full case report, I believe Tim Healey's appeal concerned what I still call a Schedule D Case I deduction, rather than an employee under what I still call Schedule E, who would have claimed under s336 of ITEPA. But, given that the Schedule E rules are notoriously stricter than the old Schedule D ones, it does seem rather an absurd state of affairs that you end up with a better outcome as an employee!  Perhaps Mr Healey needs to work through his own service company?!  

21.24

If accommodation is provided for an employee, for example, in a flat or hotel, while the employee is on business duties away from his or her home and normal place of work, the cost of this may be allowable as a deduction under the expenses rule. For example, a company in Yorkshire may rent a London flat for an employee who has to make frequent business trips to London. The extent of any deduction will depend upon the circumstances. If the accommodation is no more than an alternative to hotel accommodation and is not available for private occupation the whole cost of renting and running the flat may be allowed as a deduction. On the other hand, if the employee or his or her family also had the use of the flat as a private residence any allowance would be restricted.

Provided living accommodation will never be included in a dispensation and so even if there is a potential deduction under the expenses rules, the provision of the accommodation must be reported on form P11D each year.

 

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