John Osborne claimed a deduction for fitness training, gym membership and associated travel expenses in his 2016/17 tax return. HMRC disallowed the expenses due to a duality of purpose, ie the costs were not wholly and exclusively incurred for the purposes of Osborne’s trade, and so were not deductible.
Osborne appealed to the FTT [TC07851].
Vigorous fitness requirements
Saturation diving is a diving technique that allows deep sea divers to reduce the risk of decompression by remaining in a pressurised environment (in the diving support vessel) for a period that can last for days or weeks.
When working in the North Sea, Osborne, who is an experienced saturation diver, would work at 150-meter depths, spending days or weeks in the compressed chamber of the vessel or working at depth. The divers would only be decompressed at the end of their deployment.
Saturation diving is dangerous, and fatalities can be attributable to insufficient diver fitness. As a result, there are minimum levels of fitness required for divers, with tests generally becoming more difficult to pass the older a diver becomes (Osborne was in his late 40s).
Osborne’s contract, as well as industry guidance, made it clear that it was the taxpayer’s responsibility to ensure that he was physically fit enough to work as a saturation diver. Furthermore, Osborne could not work unless he met the fitness requirements and passed annual and pre/post saturation tests and drills.
HMRC rescinds informal agreement
Part of the appeal drew attention to the fact that there had previously been an informal agreement in place to allow a deduction for a percentage of fitness expenses. This agreement was drawn up following discussions between HMRC Divers Unit in Aberdeen and the National Union of Rail, Maritime and Transport Workers.
The Divers Unit would consider claims for the cost of gym training to keep fit for a diving medical, and essential dental work to pass said medical, in tax returns from 2009, with claims of up to 50% of the costs allowed based on age.
HMRC advised Osborne that the agreement was not binding, and had since been withdrawn, although HMRC had not given notice of the withdrawal.
Legislation
The FTT had to determine whether Osborne was entitled to claim a deduction under ITTOIA 2005 s 34 in respect of his fitness expenses.
Section 34 states that in calculating the profits of a trade, no deduction is allowed for expenses not incurred wholly and exclusively for the purposes of the trade. Also, if an expense is incurred for more than one purpose, it does not prohibit a deduction for any identifiable part or proportion of the expense which is incurred wholly and exclusively for the purposes of the trade.
The FTT agreed with HMRC that, due to the nature of fitness expenditure, it is not possible to identify a separate part or proportion, as can be done for other types of expenses. Consequently, the fitness expenditure was either allowable in full or not at all.
Duality of purpose?
Osborne, due to his years of working as a saturation diver, has cartilage and joint pain. He consulted a diving doctor and a gym instructor, who advised him on a personal fitness programme to minimise damage while maximising the strengthening effect of his training. Such training was designed to allow Osborne to lengthen his career by allowing him to continue training and working, notwithstanding his age and joint pain.
Osborne claimed that the only reason for incurring his fitness training expenditure was for the purpose of his work as a saturation diver: he would not put his body through daily unsustainable training of this nature (two to three hours per day) if it were not required for his work.
HMRC’s argument was that there is necessarily an element of duality of purpose in fitness training as it provides a personal benefit for him as a living human being, and that the expenditure cannot therefore meet the “wholly and exclusively” test in section 34.
Decision
The FTT found that Osborne’s only motive for his fitness training was to maintain the level of lung, heart and muscular fitness required to work safely as a member of a saturation diving team.
The FTT also concluded that Osborne would not train for up to three hours per day if he did not need to do it for the purpose of working as a saturation diver. His training regime was far removed from his personal physical needs because of its effects and was extreme by any measure. If the training were reduced to reasonable or less damaging levels it would not meet his needs as a saturation diver.
There was no duality of purpose in Osbourne’s expenditure on fitness training, meaning the conditions within section 34 were met.
The appeal was allowed.
Comment
As Osborne was self-employed, ITTOIA 2003 section 34 was in point, which concerns itself with expenses for a trade and does not include mention of the word “necessarily”. This differs from the test for the deductibility of an employee’s expenses (section 336 ITEPA 2003), which stipulates that the amount be “incurred wholly, exclusively and necessarily in the performance of the duties of the employment”.
