DECISION
Introduction
1.
This appeal relates to amendments to the Appellant’s self assessment tax
returns for the two years ended 5 April 2007 and 2008. HMRC have amended those
returns to disallow certain expenses (mainly related to travel, accommodation
and subsistence) and to adjust the reported turnover of the Appellant and his
expenses incurred on materials. The figures involved are not in dispute, only
the appropriate treatment of them for tax purposes. We issued a summary
decision on 23 November 2010. The Appellant applied for the decision to be set
aside and, upon that application being refused, has requested full written
reasons for the original decision.
Background and history
2.
The evidence before us was that contained in the bundles produced to us
(largely comprising correspondence between the Appellant and HMRC). The
Appellant himself did not attend the hearing to give evidence.
3.
The Appellant carried on business as a self-employed subcontractor doing
repair and maintenance work. The nature of his activities was such as to bring
him within the Construction Industry Scheme, which required deductions on
account of tax from all payments made to him.
4.
In the Appellant’s self-assessment tax return for the year ended 5 April
2007, he claimed to deduct travel and subsistence expenses of £13,760 and
motoring expenses of £450 (to cover items such as MOT, insurance and minor
repairs). The travel and subsistence expenses were made up as follows:
(1)
Petrol costs of £4,160 for weekly travel between his home in Coventry and his place of work at Dungeness Power Station in Kent;
(2)
Overnight accommodation costs of £4,800 for staying in Dungeness during
the week (48 weeks, four nights per week, £25 per night); and
(3)
Evening meal costs of £4,800 whilst away from home in Kent (48 weeks, four nights per week, £25 per night).
5.
In the Appellant’s self-assessment tax return for the year ended 5 April
2008, he claimed to deduct £3,056 for car, van and travel expenses and £9,600
for other business expenses. HMRC understood (and the Appellant did not say
they were incorrect in doing so) that the £3,056 represented the cost of travel
from his home in Coventry to Dungeness on a weekly basis and the other £9,600
related to overnight accommodation costs and evening meals on the same basis as
the previous year.
6.
In the same return, the Appellant also reported turnover of his business
as £24,000; however his only work during that year was for a construction
company owned by his family and called Hanlin Construction Limited and on the
CIS returns from that company, the Appellant was shown as having received
£25,200 from them (of which £2,000 related to materials supplied by the
Appellant and recharged to the company). HMRC therefore maintained that the
Appellant’s turnover should be shown as £25,200 rather than £24,000, but with
an extra allowable expense of £2,000 to reflect the cost of the purchases he
had made and recharged to the company.
7.
The Appellant provided no receipts or other evidence to support his
claims for expenses.
8.
In both the tax years under appeal, the Appellant’s only source of
income was the profits of his trade as a self-employed contractor.
9.
The Appellant informed HMRC during a telephone conversation on 29 April
2009 that he had been working on the Dungeness contract for some seven or eight
years. By reference to the amounts he was claiming for travel expenses, it is
clear that he was working there full time for at least the two years ended 5
April 2008.
10.
HMRC notified what they considered to be appropriate amendments to the
Appellant’s self-assessment tax returns for the two years in question by two closure
notices dated 17 February 2010.
11.
In relation to 2006-07:
(1)
They disallowed the £4,160 related to petrol costs incurred on the
weekly return trips between the Appellant’s home in Coventry and Dungeness
Power Station in Kent (his workplace) on the basis that:
(a)
one of the purposes of these journeys was to enable the Appellant to
live away from his workplace; and
(b)
it could not therefore be said that the expenditure was incurred wholly
and exclusively for the purposes of his trade.
(2)
They disallowed the £4,800 of overnight bed and breakfast accommodation
costs and the £4,800 of evening meal expenditure incurred when working at
Dungeness on the basis that:
(a)
Any such expenditure would only be allowable if incurred in respect of
overnight business trips away from the Appellant’s normal workplace; and
(b)
No such expenditure would be allowable if incurred at or near the
Appellant’s normal workplace.
(3)
They disallowed the £450 claimed in respect of motor expenses because it
also related the Appellant’s weekly trips between his home in Coventry and
Dungeness; the basis of their argument was the same as set out in [11(1)]
above.
12.
In relation to 2007-08:
(1)
They increased the Appellant’s turnover from £24,000 to £25,200 but
allowed an extra deduction of £2,000 for the cost of materials supplied by the
Appellant.
(2)
They reduced the credit claimed by the Appellant for tax withheld from
payments made to him under the Construction Industry Scheme from £4,800 to
£4,640.
(3)
They disallowed the £3,056 claimed for car, van and travel expenses on
the basis that it appeared to refer to the Appellant’s weekly journeys between
his home in Coventry and his workplace at Dungeness Power Station in Kent and
should therefore be disallowed on the same basis as set out at [11(1)] above.
(4)
They disallowed the £9,600 of other business expenses claimed on the
basis that it related to overnight bed and breakfast accommodation and evening
meal costs whilst working away from home at Dungeness Power Station, on the
same basis as set out at [11(2)] above.
13.
Following a review, these amendments were confirmed by a letter from
HMRC to the Appellant dated 9 April 2010.
The Appeal
14.
The Appellant appealed against the two amendments. In his notice of
appeal, he said:
“I am an [sic] self employed contractor. I spend time
when not working on site away from home at business meetings in the evening, or
on business matters in general at my home, which is also the registered office
of the company I work for as a self employed contractor.
My work wholly and necessarily, by its nature, involves me
travelling to site hundreds of miles away from home during the week; being
transient and therefore unable to take permanent residence (including accommodation
with cooking facilities) and involves me in business undertakings both of an
evening as well as at home. My work was unpredictable in nature. My contracts
were formed at home, all as per Horton v Young (1971) 47 TC 60. It is utterly
perverse to suggest that my expenses were anything other than a business cost.
There was no choice in the matter, no benefit I derived, other than the
legitimate income I had after proper tax deducted. HMRC initially agreed
with this entirely. However they seemed to think it was only reasonable to
spend around £12.00 per day on food and overnight accommodation. I beg to
differ, and would ask you the same question: could you find somewhere to stay
and something to eat every night, in the most expensive county in the country?
Would you travel 200 miles away from home and return of an evening?”
Analysis of applicable law
15.
The burden of proof lies on the Appellant to show, on a balance of
probabilities, that the amendments to his self-assessments made by HMRC are wrong.
Unless he can discharge that burden, the appeal must fail and the amendments
must stand.
16.
S 34 Income Tax (Trading and Other Income) Act 2005 provides as follows:
“34 Expenses not wholly
and exclusively for trade and unconnected losses
(1) In calculating the profits of a trade, no
deduction is allowed for-
(a) expenses not incurred
wholly and exclusively for the purposes of the trade, or
(b) losses not connected
with or arising out of the trade.
(2) If an expense is
incurred for more than one purpose, this section does not prohibit a deduction
for any identifiable part or identifiable proportion of the expense which is
incurred wholly and exclusively for the purposes of the trade.”
17.
Accordingly, the central question we need to decide is whether, in all the
circumstances, the travel, accommodation and food expenses incurred by the
Appellant were incurred “wholly and exclusively for the purposes of” his trade
as a self-employed contractor. If we find the Appellant is unable to satisfy
this test, the second question arises, as to whether any identifiable part or
proportion of the expenses can be regarded as satisfying the “wholly and
exclusively” requirement.
18.
There have been a number of cases in which the “wholly or exclusively” issue
has arisen in the context of self-employed tradesmen or professionals seeking
to deduct the costs of travel between their homes and other locations where
they carried on their businesses. We were referred to four of them (one of
which was slightly different, in that the claim was for costs of travel between
two places of business, one of which was very close to the taxpayer’s home,
rather than between the home and the place of business). Whilst it is clear
that none of these cases can provide principles which supersede the terms of
the legislation, they do cast some light on the correct way to approach its interpretation.
19.
In three of the four cases, the argument of the taxpayer was that he had,
to some extent or another, carried on his trade or profession at his home as
well as at some other place, and therefore the expense of travel between the
two locations ought to be allowed, on the basis that it was incurred wholly and
exclusively for the purposes of the trade or profession. These three cases
were Newsom v Robertson [1952] 33 TC 45 (in which a barrister claimed
for the cost of his travel to work at his chambers in London), Horton v
Young [1971] 3 All ER 41 (in which a bricklayer claimed for the cost of his
travel from home to work on various building sites) and Jackman v Powell
[2004] EWHC 550 (Ch) (in which a milk delivery man claimed for the cost of
travel from his home to the depot from which he carried out his milk
deliveries).
20.
In the fourth case, Sargent v Barnes [1978] STC 322, the taxpayer
(who was a dentist) quite clearly had two places of business apart from his
home – though one of them (a dental laboratory) was only a short distance from
his home. He made a slight detour to call in at the laboratory when travelling
each morning and evening between his home and his main dental surgery. He then
claimed to deduct the cost of travel between his laboratory and his dental
surgery (which of course covered the majority of his travel between his home
and his dental surgery).
21.
In Newsom, the barrister’s claim failed at the Court of Appeal. The
Court accepted that Mr Newsom carried on his profession in part at home in
Bedfordshire and in part at his chambers in London. But Somervell LJ agreed
with the Special Commissioners’ argument that the Appellant’s travel from
Bedfordshire to London and back had a dual purpose – the taxpayer wanted to
“eat, sleep and pursue his domestic avocations” at home as well as carry out
professional work. Romer LJ declared:
“...it is almost impossible to suggest that when the
Appellant travels to Whipsnade in the evenings, or at weekends, he does so for
the purpose of enabling him ‘to carry on and earn profits in his’ profession
let alone that he does so exclusively for that purpose. That purpose, as I
have said, could be fully achieved by his remaining the whole of the time in London.”
Denning LJ said:
“That [i.e. the cost of travelling between Bedfordshire
and London] is incurred because he lives at a distance from his base. It
is incurred for the purpose of living there and not for the purposes of his
profession, or at any rate not wholly and exclusively; and this is so, whether
he has a choice in the matter or not. It is a living expense as distinct from
a business expense.”
22.
In Horton v Young, the taxpayer succeeded before the Court of Appeal.
He lived at Eastbourne, and worked for a local builder as a self-employed
bricklayer. His customer (a main building contractor) would come round to his
house to engage him for particular projects and agree his pay. Then he would
drive to wherever the building site was. During the year in question, he
worked on at least seven sites across the south east of England, between 5 and 55 miles from his home, for anything up to three weeks at a time.
He did not report to any central yard of his employer for work, and he kept his
tools and books and records at home. Denning LJ held that the “locus in quo”
of the Appellant’s trade was his home, from which it radiated as a centre.
Accordingly, all his travel expenses should be allowable. Salmon LJ held that
the Appellant’s home was the “base” of his trade, and travelling from that base
to the various building sites was an essential part of his trade. Stamp LJ
emphasised that the facts in these cases are “infinitely variable, and one
must, in my judgment, look at the facts of each case..” In this case, he found
that the taxpayer “had no place which you could call his place of business
except his home”. In those circumstances, he felt there was nothing to prevent
the normal rule applying, i.e. that he should be allowed to deduct the cost of
travel from “the place where he carries on his business as a sub-contractor to
the several places at which he performs the contracts into which he enters”.
23.
In Jackman v Powell, the taxpayer lost before the High Court. Lewison
J reviewed the earlier authorities in considering the case of a self-employed
milk roundsman. The taxpayer lived 26 miles from the milk depot. He had a
franchise contract with the dairy under which he was allocated to a particular
“round” of 35 roads. He bought all his milk and other produce from the dairy
and rented his milk float from them. The taxpayer did his paperwork at his
home address (including invoicing his own customers and dealing with his
accounts). Lewison J held that the taxpayer’s “base of operation” was
“plainly” his round of 35 roads. He accepted that the taxpayer “kept his books
at home and did all his office work at home. That is true, but that seems to
me to be no different from many self-employed people who do their financial
book work at home even though they carry on their business elsewhere.”
Accordingly, the taxpayer’s travel expenses from his home to the depot were not
allowable as deductible expenses for the purposes of his trade.
24.
In Jackman v Powell, Lewison J also confirmed that “it is not in
all cases necessary [to define the base of the trading operation], and
it was only Denning LJ [in Newsom] who elevated that into a test. The
test remains the statutory test and, as Oliver J pointed out in Sargent v
Barnes [1978] STC 322 at 328...:
‘The statute here lays down a test in express terms, and
although analogies and examples may be useful guides the propounding of general
propositions which involve the use of analogous, but not precisely equivalent,
terms can lead to confusion. In the ultimate analysis, the court has simply to
look at the facts of the case before it and apply to those facts the statutory
formula.’”
25.
In Sargent v Barnes, the taxpayer lost before the High Court.
Oliver J held that, given the nature of the visits to the dental laboratory
(which were brief), realistically “what the taxpayer was doing, in my judgment,
was calling to deliver and pick up work on his way to and from the surgery
where the practice was carried on.” As he went on to say: “the interruption of
a journey, whether for five minutes or for a longer period, does not alter the
quality of the journey although it may add to its utility.” It was no surprise
that he should then hold that:
“the answer to that question [i.e. why did the taxpayer
incur the expense of the petrol, oil, wear and tear and depreciation in
relation to this particular journey] must be that it was incurred, if not
exclusively then at least in part, for the purpose of enabling the taxpayer to
get from his private residence to the surgery where his profession was carried
on. The fact that it served the purpose also of enabling him to stop at an
intermediate point to carry out there an activity exclusively referable to the
business cannot, as I think, convert a dual purpose into a single purpose.”
26.
Oliver J went on to say that it would be a “travesty” to say that the
taxpayer was in any relevant sense carrying on his practice as a dentist at the
site of the laboratory.
27.
From the above cases we derive the following principles.
28.
First, the wording of the statutory provisions is paramount and each
case must be decided on its own facts on the basis of the statutory provisions.
Although analogies and examples may be useful guides, they must not be allowed
to obscure or override the statutory wording.
29.
Second, the cost of travel between a taxpayer’s home and any other place
where he performs duties of the trade will generally be private expenditure and
not “incurred wholly and exclusively for the purposes of the trade”, even if
the taxpayer chooses to carry out some activity of the trade at his home. This
is because a desire to spend time at home will generally be at least part of the
reason for making the journey. This general presumption may however be
displaced in appropriate circumstances – see the following paragraphs.
30.
Third, if the taxpayer’s home is found to be the “base from which he
carries on his business” (per Horton v Young) or his “base of operation”
(per Jackman v Powell), then it may be possible to establish that the costs
of routine travel between his home and other places of work are deductible (if
incurred wholly and exclusively for the purposes of the trade).
31.
Fourth, even if the taxpayer’s home is not the “base from which he
carries on his business” or his “base of operation”, it is possible that travel
may be required between a taxpayer’s home and some other place which is wholly
and exclusively for the purposes of the taxpayer’s trade. The statute would
not necessarily preclude a deduction for the expenses of such travel simply
because it starts or ends at the taxpayer’s home. An example might be a service
engineer whose customer calls him out at night from home instead of from his
normal daytime place of work to perform emergency repairs.
32.
All the above cases were concerned solely with travel expenses. There
are other lines of authority concerned with the deductibility of the cost of
food and accommodation as “standalone” items. The general starting point of
those cases is that food and accommodation are normal human requirements,
irrespective of any business purpose; they have an intrinsic duality of purpose
(business/private) and therefore no business deduction can be made for the cost
of them. However, HMRC accept that where a business trip necessitates one or
more nights away from home, accommodation costs and associated reasonable meal
and subsistence costs are deductible, on the basis that any private purpose is
in such circumstances merely incidental to the predominant business purpose.
We agree with this analysis and therefore hold that the allowability of the
accommodation and meal costs in this case should follow the allowability of the
travel expenses.
Applying the law to the present case
33.
Can it be said that the Appellant’s travel in both the years under
appeal was undertaken (and the associated travelling, overnight accommodation
and meal expenses were therefore incurred) wholly and exclusively for the
purposes of his trade?
34.
It is clear that the travel was between the Appellant’s home in the Midlands and the place in Dungeness where he carried out the work for his customer. As
such, our first impression is that the travel was at least partly for private
purposes.
35.
We take the Appellant to be arguing that this first impression is
incorrect because the base from which he carried on his business (or his base
of operation) was his home, so that travel between that base and Dungeness
should be allowable on normal principles.
36.
We accept that the Appellant may well have carried out some
administrative work in relation to his business while he was at home over the
weekends. But as a matter of fact, he derived all his income for the two years
in question from his work in Dungeness, he spent four nights of every working
week there and his assertion that he spent time “on business matters in general
at my home” was vague and unsupported by evidence. In any event, given the
full-time nature of his commitment to work on site in Dungeness, we do not
consider that his activities at home at the weekends on business matters could
have been material in extent.
37.
The Appellant had also stated (in his letter to HMRC dated 3 March 2010)
that he was “fortunate to win contracts by bidding for them on a daily basis
and for that reason it was impossible to move to Kent on a permanent basis as I
might not have any work the next day”; from this we infer that much of his
bidding and negotiating for contracts was carried out in Kent rather than at
his home in the Midlands (notwithstanding his assertion in his notice of appeal
that “my contracts were formed at home, all as per Horton v Young”).
38.
There are some clear differences between this Appellant and the
bricklayer in Horton v Young. The most striking of those is what
Lewison J referred to as the lack of “predictability about Mr Horton’s places
of work when he was employed on a bricklaying subcontract. He would have to go
wherever Mr Page’s main contracts took him.” There is a clear contrast between
that situation and this Appellant’s full time working in one place for a period
of years, however precarious he maintains his position to have been on a day to
day basis.
39.
On the basis of the above facts, we find that the Appellant’s travel
expenses were incurred at least in part by reason of his wish to remain living
at home in the Midlands. We find that his base of operations (or the base from
which he carried on his business) was at Dungeness and not at his home. We
therefore reject any argument that the private purpose element of the travel
can be disregarded as being incidental to a main business purpose (of
travelling between his base and a worksite).
40.
We could not discern any other basis on which the Appellant was arguing
that the travel expenses were incurred wholly and exclusively for the purposes
of his trade.
41.
It follows that we consider he did not incur the expenses of travel
between his home and Dungeness “wholly and exclusively for the purposes of the
trade”. Nor was there any argument or evidence before us that “any
identifiable part or identifiable proportion” of the expenses (as opposed to
the whole of them) was so incurred. We therefore hold that the statutory test
in s 34 ITTOIA 2005 is failed and the travel expenses may not be deducted for
tax purposes in computing the profits of the Appellant’s trade in the two years
in question.
42.
As set out above, the tax treatment of the accommodation and meal
expenses follows that of the travel expenses.
43.
It follows that the appeal must fail insofar as it relates to the
travel, accommodation and meal expenses.
44.
No evidence was put before us to support the claiming of the £450 of
motoring expenses as a valid business expense in 2006-07 and therefore we must
also agree with HMRC’s disallowance of those expenses.
45.
In relation to the 2007-08 tax year, the Appellant also maintained that HMRC’s
amendment to his reported turnover (upwards by £1,200) and their adjustment to
his expenses (upward by £2,000) was wrong; however no evidence was brought
forward to support his position, and we observe that the net effect of these
two adjustments was to reduce the Appellant’s taxable profit by £800. We
therefore agree with these aspects of HMRC’s 2007-08 amendment.
46.
In addition, the Appellant had taken credit in his 2007-08 return for
£4,800 of tax deductions under the CIS from payments made to him by the
company. HMRC had amended his self-assessment return in line with the CIS
monthly returns made by the company, so give credit only for £4,640 of CIS
deductions. Again, the Appellant did not bring forward evidence (for example, in
the form of copies of the certificates issued to him totalling the higher
amount) to support his case and therefore we also accept this aspect of HMRC’s
amendment to his return.
Conclusion
47.
It follows that we find in favour of HMRC on all aspects of the appeal,
which must therefore be dismissed in full.
48.
This document contains full findings of fact and reasons for the
decision. Any party dissatisfied with this decision has a right to apply for
permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure
(First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be
received by this Tribunal not later than 56 days after this decision is sent to
that party. The parties are referred to “Guidance to accompany a Decision from
the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this
decision notice.
KEVIN POOLE
TRIBUNAL JUDGE
RELEASE DATE: 28 MARCH 2011
