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HMRC wins Samadian mileage tribunal

18th Feb 2013
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A first-tier tribunal ruled that a doctor’s business mileage claims to and from his home office and a private hospital were not wholly and exclusively allowable expenditure.

The tribunal judges decided the case in favour of HMRC in late January. They ruled that Dr Samadian had a dedicated office in his home that he needed for professional activity, but did not accept the home office as a starting point for calculating private practice business mileage for habitual journeys.

The tribunal decision for Dr Samadian V HMRC TC/2010/03747 was reached on 28 January, but the formal document has not yet been published online.

This summary is based on an analysis by Abbey Tax, which worked with one of the accountants involved in the case.

Abbey Tax consultant Guy Smith said the case was landmark due to its stance on business bases. In this case, the tribunal accepted the home was a, but not the, business base and comes down to the meaning of 'habitual' and 'itinerant'.

"Today the business base is always moving. There's a lot of co-ordination between working at home and other places of work. A lot of professions do this. During this case HMRC has ruled that businesses cannot claim expenditure to and from a home for mileage purposes," he said. 

Accountants will need to adjust their thinking on wholly and exclusively in situations where self-employed professional clients work at home, but also deliver their expertise at another location on a regular basis. The effect could also extend to their own expense claims.

An accountant may regularly work at home, but then travel into the main office to conduct a meeting in the afternoon. Following the logic of the Samadian decision, HMRC could now argue that mileage is disallowable.

"You now need to look and see whether there is subconscious thinking behind a motive," Smith said. "For example, the original intent may be one thing, but the subconscious reasoning may be different. For example, buying business clothes in the case of a female lawyer who bought black suits for work. Her original intent was to buy the clothes to use for work, but her subconscious thinking was that people need to be clothed for decency purposes."

The saga started in 2006 when HMRC started an enquiry into the doctor’s claims and spanned three separate tribunal hearings.

Dr Samadian, a geriatrician working full-time for various hospitals, helds weekly outpatient sessions at two private hospitals and has a home office.

He submitted a schedule of weekly journeys between NHS and private hospitals and home to private hospitals to support a 65% business mileage and capital allowance expense claim on his self assessment return.

HMRC rejected this however and proposed an alternative business percentage of 6%, but as both sides could not reach an agreement, the issue went to tribunal.

HMRC argued that since the purpose of the journey was to undo the non-business journey home undertaken by Samadian, it could not be treated as wholly and exclusively for the purposes of business. This position was supported by the tribunal judges.

Dr Samadian is said to be preparing an appeal.

In a similar case in 2011 highlighted in Any Answers, a surgeon ran his practice from home but also worked in private hospitals.

HMRC attempted to disallow mileage from the office to the hospital, but 17 months after the post, HMRC “gave in” on that case in January when the doctor prevailed at an independent HMRC review. 

Replies (12)

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Jennifer Adams
By Jennifer Adams
18th Feb 2013 11:40

Which clients to worry about?

My first reaction on reading this post was - havent HMRC got better things to do? How much is involved ? And why now?

But then I looked at the very clear and concise Abbey Tax pdf file. What was interesting was the detail considered in the work room - tables, couch, filing cabinet, prescription pads - would you believe!

And then I started to worry about some of my clients. Even myself with two offices? As Rachael says - its the regularity that is key here.

 

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By The Black Knight
18th Feb 2013 11:53

Doh?

hasn't that always been the case? Landmark?

Maybe someone should have read Newsom v Robertson 1952.

Lord Denning !!!

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By justsotax
18th Feb 2013 12:10

Am I another one

not shocked.....it seems there hasn't been any rule changes.  

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By George Attazder
18th Feb 2013 13:43

I agree...

... with The Black Knight and justsotax.

Until we see the case transcript though, it's possible that there's something we're missing. The tribunal referred to the three major precedents, as well as the FTT decision in Manders and for some obscure reason also referred to Mallalieu v Drummond.

I'm surprised by the chap that got the expenses allowed at the Independent Review in the other case (the member post) that Rachel's referring to, as the position seems similar, ie that all of the individual's "being a doctor" activities occurred at regular venues, rather than there being any degree of itinerancy.

Having your office at the place you personally choose to live is irrelevant if you regularly go somewhere else to do the thing it is that you do.

As for the "landmark" element of recognising the home office as a business base, I'd suggest that the tribunal erred. It's not where the business is based, but where the person that carries on the business chooses to base himself.

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By jiatbanus
18th Feb 2013 16:34

Yuk.

Guess they thought they were just simplifying the tax system and that the cost was worth it, whatever that cost was. I suppose someone will pay another consultancy to calculate and justify.

Personal message to HMRC.

"You ********** of **************** ************, we ************* be **************** much *************

********** ** *********** ********* ********* ************** ************".

Please edit to express your own feelings about this.

jiatbanus.

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By The Black Knight
18th Feb 2013 16:55

Excuse me ?

This could hardly be HMRC's fault?

It's their Job to challenge and it is the tax payer that has exercised his right to appeal.

The tribunal has merely agreed with what was already thought to be the law, and what many competent advisers would have advised anyway.

I presume the stars are meant to be rude words?

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By jiatbanus
18th Feb 2013 17:15

You're excused.

Common sense is illegal in public service.

The asterisks are what I think that you would like to say, but you just said what I expect.

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By jkd
18th Feb 2013 23:14

Limited Companies

So how does this ruling affect limited companies which are registered and based from home ?

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By thehaggis
20th Feb 2013 09:39

Limited Companies

It's a different test for office holder and employees.  Wholly and exclusively isn't an issue.

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Replying to Justin Bryant:
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By The Black Knight
20th Feb 2013 10:00

That is

thehaggis wrote:

It's a different test for office holder and employees.  Wholly and exclusively isn't an issue.

employee = Wholly and exclusively and necessarily incurred in the performance of duties

Business/ company = wholly and exclusively for the purpose of the trade.

Does that help?

 

Yes it still applies to limited companies...there is no change to the right advice.

Allowable travel when your place of business or work is not home.

This is a minefield on its own.

This is also often a secondary issue in Grey IR35 cases that the revenue used to pick up on pre IR35 but have now lost that tax revenue.

 

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By thehaggis
20th Feb 2013 22:27

Nonsense

General expenses have to be wholly exclusively and necessarily incurred. (s336 ITEPA)

Travel expenses only have to be necessarily incurred (s337 ITEPA).  This was true even under s198 ICTA'88 and 189 ICTA'70.  

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By The Black Knight
21st Feb 2013 10:37

Agreed different test for Travel

Agreed different test for travel.

Blinded by Mallalieu v Drummond mentioned above which was duality of purpose.

in performance of duties still applies though.

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