[2010] UKFTT 110 (TC)

TC00421                   

  Appeal number TC/2009/11997

INCOME TAX – SELF-EMPLOYMENT INCOME – EXPENSES – stunt performer in film and television productions – expenses for (1) private medical operation on knee, (2) chiropractor treatment, (3) massages, (4) dental treatment, and (5) health and fitness – whether deductible as “wholly and exclusively laid out or expended for the purposes of the trade or profession” – yes in the particular circumstances of the case as to (1), (2), (3) and (4) – no in the particular circumstances of the case as to (5) – Appeal allowed in part

FIRST-TIER TRIBUNAL

TAX

                                                      MR DAVID S PARSONS                        Appellant

                                                                      - and -

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                                   REVENUE AND CUSTOMS               Respondents

TRIBUNAL: Dr Christopher Staker (Judge)

Ms Anne Redston (Member)

Sitting in public in Bexleyheath on 2 February 2010

The Appellant appeared in person and Mr. D Reed attended on behalf of the Appellant

Ms. E Taylor, HMRC Presenting Officer, for the Respondents.

© CROWN COPYRIGHT 2010

The Tribunal finds that the Appellant was entitled to make the deductions for “medical expenses”, “chiropractor/massage” and “dentist” as claimed by him in his tax returns for the years ending 5 April 2003, 5 April 2004, 5 April 2005, and 5 April 2006.

The Tribunal finds that the Appellant was not entitled to make the deductions for “health & fitness” as claimed by him in his tax returns for the years ending 5 April 2003, 5 April 2004, 5 April 2005, and 5 April 2006.

The appeal is allowed in part.

DECISION

Introduction

1.     The Appellant is a self-employed stunt performer. Following an enquiry under s.9A of the Taxes Management Act 1970 (the “TMA”) into the Appellant’s self-assessment tax return for the year ended 5 April 2006, HMRC issued an amendment to that self-assessment under s.28A of the TMA. HMRC then raised assessments under section 29A of the TMA in respect of the three years ended 5 April 2003 to 5 April 2005.  The Appellant now appeals against aspects of that assessment and those amendments which remain in dispute between the parties.

2.     The dispute relates to amounts claimed by the Appellant as deductions in the years in question in respect of “medical expenses”, “health & fitness”, “chiropractor/massage” and “dentist”.  Not all of these categories of deductions were claimed in respect of all of the relevant years.  The amounts claimed in respect of each of the categories in each of the relevant years are set out at page C18 of the Document Bundle produced by HMRC.  HMRC contends that these expenses were not allowable expenses under s.74 of the Income and Corporation Taxes Act 1988 (“ICTA”).

The relevant legislation

3.     Section 74 of ICTA (which has been repealed but the provisions of which remain applicable to the years in question) provided that:

(1)   Subject to the provisions of the Corporation Tax Acts, in computing the amount of the profits to be charged to corporation tax under Case I or Case II of Schedule D, no sum shall be deducted in respect of—

(a)   any disbursements or expenses, not being money wholly and exclusively laid out or expended for the purposes of the trade or profession; ...

4.     The powers of HMRC in respect of enquiries and closure notices and assessments, and the Tribunal’s powers on appeal against amendments to self-assessments under s.28A of the TMA and against assessments under s.29A of the TMA are set out in the TMA.

The hearing

5.     The Appellant attended the hearing with his representative, Mr D Reed.  He called one witness, Mr R Ash. HMRC was represented by Ms E Taylor, who called as a witness Mr S Perry, an HMRC inspector who was involved in the investigation into the Appellant’s tax returns.

6.     By agreement between the parties, HMRC presented its case first.  Ms Taylor produced a bundle of documents, a skeleton argument, copies of authorities and a witness statement of Mr Perry.  Mr Perry adopted his witness statement as his evidence. Some questions were asked of him by way of cross-examination relating to previous communications with HMRC on behalf of the Appellant.

7.     The Appellant's case was then presented. No witness statement of Mr Ash had been produced or served in advance of the hearing. The Tribunal decided that it would hear the evidence of Mr Ash, and that HMRC could raise an objection at any time if it considered that it was prejudiced by the lack of notice of his evidence. No such objection was raised on behalf of HMRC at the hearing.

8.     The Appellant gave the following evidence.

9.     The Appellant has been a self-employed stunt performer for some 12 years.  His work has included stunt performances in a number of major films and in television productions, including for instance car crashes and stunt falls. He has sustained various injuries in the course of his work, including broken bones, dislocated joints and broken teeth. On occasion he performs as a stunt double playing the part of an actor, so that his physical appearance and presentation are important.

10.  As to the claims for medical expenses, these related solely to an operation on his knee, which he had as a private patient.  In 2003, he sustained an injury to the knee while performing a stunt for a film production in Romania. After his return to the United Kingdom, he saw his GP and was referred to a hospital. He was recommended to have a knee operation. The NHS waiting list for this operation was almost a year. Before the operation could be undertaken, he trained up his fitness again and resumed working. He obtained a part in a television production which required him to grab and to lift up another actor. While performing this stunt his knee collapsed and he fell to the ground while holding the actor. As his performance was not up to the standard required for his work, he had no choice but to get private medical surgery on his knee in order to continue working.  If he had not been working, he would not have required the knee operation, and if he had been in a less physically demanding job, he could have carried on working without the knee operation.  But for the fact that he needed to have the operation in order to be able to work, he would not have had the operation undertaken as a private patient, but would have waited to be treated on the NHS.

11.  As to the claims for fitness expenses, the Appellant said that in order to be a stunt performer, he needs to maintain a high level of fitness.  He said that he needs to have six skills up to instructor level. He has eight.  At the age of 45 years he is competing with people half his age. He needs to keep his fitness to an optimum and trains several times a week. He needs to be ready for work whenever he gets the call.

12.  As to the claims for chiropractor expenses, these were due to an injury to his back which he sustained in 2001 or 2002 while working on a film called Jack and the Beanstalk. He can move normally, but when performing stunts, his back knots up if he goes for several weeks without chiropractic treatment. When he is not in work he does not require chiropractic treatment, but when he is working he still needs the treatment today on an ongoing basis. The treatment is not covered by the NHS.

13.  As to his claim for masseur expenses, he said that in some cases the production company will provide the services of a masseur, but that he does not get that benefit in most productions that he works on. He said that he is “not one to lie there and be fiddled with by other people”, but that the nature of his work as a stunt performer is such that massages are necessary in order to enable him to continue performing his work.

14.  As to the claim for dental expenses, he said that he had sustained injuries to his teeth in the course of his work. He said that it is necessary for him to have good teeth for his work and that he has to present appropriately. He said that he only claimed dental expenses in respect of teeth which had been chipped during stunt performances.

15.  In cross-examination, the Appellant said that his hobbies revolve around work, and that he became a stunt performer because of his interest in skydiving and martial arts. He used these qualifications to become a stunt performer but he does not do them as a hobby any more. He enjoys his job, and as part of his job he has to keep current with his skill levels. For every job on which he works, he has to produce certificates of affiliation with the relevant organisations. He now has more sedate hobbies such as hill walking, swimming, and spending time with his wife and children.

16.  In response to questions from the Tribunal, the Appellant explained that when he injured his knee while working in Romania, the production company looked after him while he was in Romania but that the production company was not liable thereafter.

17.  The Appellant gave evidence that he does not have private health insurance as private insurers will not cover him because of the nature of his work.  He therefore has to rely on the NHS.  He has insurance against loss of earnings caused by injuries.

18.  Mr Ash gave evidence as follows. He has been a stunt performer for 17 years and is a stunt coordinator and is presently head of the Equity “stunt register”. In practice, it is necessary for a person to be on the stunt register in order to be engaged as a stunt performer. The BBC and ITV will use no one who is not on the stunt register, and it is the same for other companies. In order to be on the stunt register, it is necessary to have six disciplines to instructor level. A stunt performer must keep logbooks and paperwork is checked. There are three levels of stunt performer, “probationary”, “intermediate” and “stunt coordinator”, each requiring higher levels of experience which must be appropriately documented and certified.  A directory of stunt performers who are on the register is produced every two years, and a stunt performer must maintain currency of qualifications in order to be included in each new edition.  Mr Ash also gave evidence of the physically demanding nature of the work of a stunt performer.

19.  On behalf of HMRC, Ms Taylor submitted that the cost of surgery is not allowable as restoration of health is not a business purpose. She relied on Norman v Golder (1944) 26 TC 293 and Prince v Mapp (1969) 46 TC 169. She submitted that while some medical treatment may be a business expense, such as the removal of a mole from the face of the person whose work requires them to appear before a camera, the expense must be trivial, and must relate wholly and exclusively to the business and not serve a dual purpose. The injury to the appellant’s knee interfered with his normal life and he was in considerable pain and needed the operation. He could have had the operation on the NHS but he chose not to wait. He could have got private medical insurance but he did not. The health and fitness expenses were not wholly and exclusively for the purposes of his trade, as everyone enjoys good health. While in Mallalieu v. Drummond [1983] 2 AC 861; (1983) 57 TC 330; [1983] STC 665 it was held that expenditure may be deductible if any other benefit is purely incidental to the carrying on of the trade, the main reason must nonetheless be wholly and exclusively for the purposes of the trade.

20.  The HMRC skeleton argument also submitted that the onus of proof is on the Appellant, and the burden of proof is the ordinary civil standard of a balance of probabilities.

21.  The Appellant said that the only reason he had the knee operation was that he could not get work until it was done. He said that he needs to remain up-to-date in his skills.

The Tribunal’s views

General

22.  At the hearing, the parties agreed that it would suffice for the Tribunal to determine whether each of the disputed categories of deductions claimed (“medical expenses”, “health & fitness”, “chiropractor/massage” and “dentist”, respectively) were allowable in relation to each of the years in respect of which they were claimed.  The parties agreed that it was not necessary for the Tribunal to go further, and to undertake any arithmetical recalculations of the Appellant’s tax liability if the appeal were allowed in whole or part.

23.  The amounts claimed in respect of each of the categories in each of the relevant years are set out at page C18 of the Document Bundle produced by HMRC. 

24.  The Tribunal has considered all of the material before it, including all of the evidence and submissions of the parties.

25.  The Tribunal finds that the burden of proof is on the Appellant, and that the standard of proof is the balance of probabilities.

The medical expenses

26.  On the basis of the evidence before it considered as a whole, the Tribunal finds the facts to be as stated in paragraphs 9 and 10 above. The evidence of the Appellant in this respect was not contradicted by evidence presented by HMRC, and the Tribunal found the Appellant to be credible.  The Tribunal also finds, as stated by the Appellant, that the claims for “medical expenses”, which were made solely in respect of the years ending 5 April 2003 and 5 April 2004, related exclusively to his knee operation.

27.  HMRC rely on Norman v Golder, in which it was said that:

It is quite impossible to argue that a doctor's bills represent money wholly and exclusively laid out for the purposes of the trade, profession, employment or vocation of the patient. True it is that if you do not get yourself well and so incur expenses to doctors you cannot carry on your trade or profession, and if you do not carry on your trade or profession you will not earn an income, and if you do not earn an income the Revenue will not get any tax. The same thing applies to the food you eat and the clothes you wear. But expenses of that kind are not wholly and exclusively laid out for the purposes of the trade, profession or vocation. They are laid out in part for the advantage and benefit of the taxpayer as a living human being.

28.  However, the position is not as categorical as this passage would appear to suggest.  Ms Taylor acknowledged on behalf of HMRC that on the particular facts of a given case it may in fact be possible for medical expenses to satisfy the “exclusivity” test.  She gave the example of a television presenter having a mole removed from his or her face.  In Prince v Mapp, the test was found not to be satisfied in relation to medical expenses for an operation to the appellant’s hand in order to enable him to continue playing the guitar. However, in that case the appellant played the guitar as a hobby as well as in order to earn money.  That case left open the possibility that the claim might have been allowed if the appellant has played the guitar exclusively in order to earn money.

29.  In Prince v Mapp, Pennycuick J said that:

It may well be that in that passage [in Norman v Golder] Lord Greene MR did not have in mind the sort of medical care which an individual carrying on a trade or profession would not incur for any reason apart from the promotion of his trade or profession. It is quite easy to think of instances in which someone carrying on a trade or profession incurs some injury which is trivial in itself and in respect of which he would never otherwise expend money on medical care but which happens to be of vital importance for the purpose of that particular trade or profession. In such a case I am prepared to assume in favour of the taxpayer here that it would be possible for a taxpayer to incur expense which was wholly and exclusively for the purpose of his trade or profession. I say I am prepared to assume. I do not give any decision on it because on the particular facts of this case it is not necessary for me to do so.

Ms Taylor submitted that it follows from what was said by Pennycuick J that as a general proposition, medical expenses will be incurred wholly and exclusively for the purpose of the trade or profession only where they are “trivial”. The Tribunal does not accept that Pennycuick J was stating this to be a specific legal requirement that must be satisfied, but was merely giving the example of a trivial injury. 

30.  In Mallalieu, Lord Brightman said that “The effect of the word ‘exclusively’ is to preclude a deduction if it appears that the expenditure was not only to serve the purposes of the trade, profession or vocation of the taxpayer but also to serve some other purposes”.  He added, with reference to Morgan v Tate & Lyle Ltd [1954] [1955] AC 21 at 37, 47, that “To ascertain whether the money was expended to serve the purposes of the taxpayer's business it is necessary to discover the taxpayer's ‘object’ in making the expenditure” and that it is therefore necessary to “look into the taxpayer's mind at the moment when the expenditure is made”.  Lord Brightman then said that:

The object of the taxpayer in making the expenditure must be distinguished from the effect of the expenditure. An expenditure may be made exclusively to serve the purposes of the business, but it may have a private advantage. The existence of that private advantage does not necessarily preclude the exclusivity of the business purposes. For example a medical consultant has a friend in the South of France who is also his patient. He flies to the South of France for a week, staying in the home of his friend and attending professionally on him. He seeks to recover the cost of his air fare. The question of fact will be whether the journey was undertaken solely to serve the purposes of the medical practice. This will be judged in the light of the taxpayer's object in making the journey. The question will be answered by considering whether the stay in the South of France was a reason, however subordinate, for undertaking the journey, or was not a reason but only the effect. If a week's stay on the Riviera was not an object of the consultant, if the consultant's only object was to attend on his patient, his stay on the Riviera was an unavoidable effect of the expenditure on the journey and the expenditure lies outside the prohibition in s 130.

In that case, it was held that the “exclusively” test was not satisfied in relation to clothing purchased by a barrister for purposes of being worn in court.  Lord Brightman said:

Of course the taxpayer thought only of the requirements of her profession when she first bought (as a capital expense) her wardrobe of subdued clothing and, no doubt, as and when she replaced items or sent them to the launderers or the cleaners she would, if asked, have repeated that she was maintaining her wardrobe because of those requirements. It is the natural way that anyone incurring such expenditure would think and speak. But she needed clothes to travel to work and clothes to wear at work, and I think it is inescapable that one object, though not a conscious motive, was the provision of the clothing that she needed as a human being. I reject the notion that the object of a taxpayer is inevitably limited to the particular conscious motive in mind at the moment of expenditure. Of course the motive of which the taxpayer is conscious is of a vital significance, but it is not inevitably the only object which the commissioners are entitled to find to exist.

31.  Lord Brightman considered it to be immaterial in that case that the clothing was only purchased in order to be worn when “on-duty”, and that the clothing was only worn when “on-duty”.  However, in quoting from Hillyer v Leeke [1976] STC 490, he indicates that it was a material consideration that the clothing in question was “not of a special character dictated by the occupation as a matter of physical necessity but [was] ordinary civilian clothing of a standard required for the occupation”.  Lord Brightman thereby indicated that the position might be different if the clothing was “of a special character dictated by the occupation”, as in the case of a uniform. 

32.  The Tribunal understands the reasoning in Mallalieu to be as follows.  When working, any person must necessarily wear some form of clothing.  That is an inevitable need “as a human being”.  Whether or not the clothing is worn when off-duty, if it is of a type that could be worn when off-duty, it can be regarded as serving this inevitable human need, in addition to serving the purposes of the trade or profession.  The clothing therefore serves a dual purpose, and expenditure on the clothing is not “exclusively” incurred for purposes of the trade or profession.  On the other hand, where the clothing is of “a special character dictated by the occupation as a matter of physical necessity”, it can be said that the only purpose of incurring the expenditure on the clothing was the purposes of the trade or profession.  The fact that such clothing also serves an inevitable human need to wear clothing is an “unavoidable effect”, rather than a purpose, of expenditure on such clothing.

33.  The Tribunal considers that Norman v Golder and Prince v Mapp indicate that medical expenses are subject to a similar analysis.  Health is a human need, and even if it is impossible to work without being healthy, medical expenses incurred to maintain health are at least in part “in part for the advantage and benefit of the taxpayer as a living human being”.  Medical expenses therefore will normally serve a dual purpose and will not satisfy the “exclusivity” test.  However, where medical expenses can be said to be of “a special character dictated by the occupation as a matter of physical necessity”, the Tribunal considers that it may be possible to conclude that the expenses were “wholly and exclusively laid out or expended for the purposes of the trade or profession”, and that any benefit as a human being is merely an “unavoidable effect” rather than a purpose of the expenditure.

34.  Whether or not it is possible to so conclude will necessarily always be a question that is case specific.  The question is whether the expenditure by this particular Appellant on this particular knee operation was in the particular circumstances of this particular case “wholly and exclusively laid out or expended for the purposes of the trade or profession”. 

35.  The Tribunal finds that a particular feature of the present case is the nature of the Appellant’s work.  It is in the nature of his work to undertake activities that are inherently dangerous.  The Appellant’s evidence was that stunts are carefully planned in order to minimise the risk of injury, but on the evidence the Tribunal is satisfied that it is more or less normal for him to sustain injuries of one type or another from time to time in the course of this work.  It is precisely because of this, as well as because of the level of skill required to perform the stunts at all, that stunts in a film or television production are performed by stunt performers rather than by actors themselves.  It is in effect part and parcel of the Appellant’s work to assume the risk of injury in performing a stunt, and then if an injury is sustained, to recover and to move on in order to perform the next stunt.

36.  In this case, the Appellant sustained the injury to his knee in the course of performing a stunt.  On the evidence, there was no necessity for him to incur the expense of the knee operation apart from the need to do so in order to be able to continue working.  He began working again before the operation was undertaken, and in performing a stunt requiring him to lift an actor, his knee gave way under him.  He was thus found to be physically incapable of doing what was required for the job.  He then had a choice either of ceasing to work until the operation could be undertaken on the NHS, or of paying to have the operation done privately. 

37.  On the evidence, the Tribunal is satisfied that in terms of his requirements as an ordinary human being, he could have waited, and would have been content to wait, to have the operation on the NHS.  The evidence was also that in a physically less demanding job he could have carried on working in the meantime, and that it was only because of the particular demands of the kind of work that he does that he could not carry on working until the operation was done. 

38.  In the Tribunal’s view, the very circumstances in which the injury was sustained, and the need for this particular injury to be repaired in order for the Appellant to be able to continue to meet the particular demands of his specialised work, lead to the conclusion that the circumstances of the knee operation were “of a special character dictated by the occupation”.  The Tribunal is satisfied that the Appellant, in having the operation performed privately, was not motivated in whole or in part by his medical needs as a normal human being (these being sufficiently catered for by the NHS).  He was solely motivated by the requirements of his work.  The Tribunal is satisfied on the peculiar facts of this case that any benefit that the Appellant had from the operation as a normal human being was an “unavoidable effect”, rather than a reason, for undertaking the operation.

39.  The Tribunal therefore finds that the Appellant was entitled to the deductions for “medical expenses”.

The chiropractor expenses

40.  The Tribunal finds that the same reasoning applies in relation to the claimed deductions for “chiropractor”.  The evidence is that chiropractor treatment is required as a result of an injury sustained while performing a stunt.  The evidence is that the Appellant does not require the treatment when he is not working.  However, because of the physical demands of the particular work that he undertakes, the Appellant requires chiropractor treatment when he is working.  The Tribunal finds that this treatment also, on the peculiar facts of this specific case, is “of a special character dictated by the occupation”, and that any personal benefit is an “unavoidable effect”, rather than a reason, for undertaking the treatment.

The masseur expenses

41.  The Tribunal also finds that the same reasoning applies once more in relation to the claimed deductions for “massage”.  The Appellant’s uncontradicted evidence was that the physical demands of his work as a stunt performer are such that while he is working, massages are necessary in order to enable him to continue performing the work.  There is no suggestion on the evidence that he would have incurred these expenses but for this reason, his evidence being that he is “not one to lie there and be fiddled with by other people”.  On the evidence before it, the Tribunal is satisfied that the masseur services were necessary for the Appellant to perform his work, that he would not have incurred the expenses for these services but for his work.  The Tribunal finds that any personal benefit, if there be any, was an “unavoidable effect”, rather than a reason, for undertaking the treatment.

The dental expenses

42.  The evidence that the Tribunal has accepted is that the expenses for “dentist” all related to injuries to the Appellant’s teeth sustained in the course of his work.  It is noted in this respect that these deductions were claimed only in relation to the years ending 5 April 2005 and 5 April 2006.  The Tribunal also accepts the Appellant’s evidence that it was necessary for him to have the dental treatment in order to continue working.  This was said to be because he sometimes works as a stunt double, performing the role of an actor, and therefore has to present appropriately. 

43.  In the case of the dental treatment, it is more readily apparent that the Appellant has a personal benefit as a human being.  However, the Tribunal takes into account that the injuries to the Appellant’s teeth were specifically sustained in the course of his work, that it was an inherent part of his work to subject himself to the risk of such injuries occurring, and that it was necessary for him to have the damage repaired in order to continue working.

44.  The Tribunal therefore once more finds that the same reasoning applies in relation to the expenses for dental expenses.  On the evidence before it, the Tribunal is satisfied that the dental services were necessary for the Appellant to perform his work, that he would not have incurred the expenses for these services but for his work, and that any personal benefit was an “unavoidable effect”, rather than a reason, for undertaking the treatment.

The health and fitness expenses

45.  The Tribunal accepts the Appellant’s evidence that in order to be a stunt performer, he needs to maintain a high level of fitness in order to be ready for work whenever he gets the call, given especially that he is competing for work with others much younger than him.  His evidence was also that he now has sedate hobbies such as hill walking, swimming, and spending time with his wife and children, the suggestion being that but for his work he would not have needed to incur these expenses for training several times a week.

46.  The Tribunal accepts the evidence that the Appellant, in order to be on the stunt register, needs to have six skills up to instructor level, and that these skills need to be kept current. 

47.  However, the Tribunal was not provided with evidence of the details of precisely what the expenses for “health & fitness” were for.  The Appellant referred in his evidence to “fitness training” generally and to boxing classes.  The Tribunal finds that the evidence before it does not establish that these expenses related, for instance, directly and specifically to maintaining these specialised skills that the Appellant must have to remain on the stunt register.  The Tribunal finds that the evidence before it does not establish that the expenses related to more than maintaining the standard of fitness generally that is required in order for the Appellant to be able to perform this type of work.

48.  The Tribunal accepts that a particular level of physical fitness may be a general requirement of the Appellant’s work.  However, that is true also of many other occupations.  Other occupations may have other general requirements, such as a particular standard of dress, or particular standards of general physical appearance, or particular standards of general communication skills.  It may be that a person will need to expend time and money on maintaining or enhancing one or more of such general attributes in order to be able to obtain work in a particular field, or in order to be competitive in the work market in that field.  It may also be that a person would not incur particular expenditures of this nature but for their work.  However, every human being has one standard or another of health and fitness, dress, physical appearance, communication skills, and so forth.  The fact that some occupations require a higher standard than others in respect of one or more of these matters does not make it “of a special character dictated by the occupation”. 

49.  It follows from Mallalieu, for instance, that expenditure incurred in maintaining a particular standard of dress may not satisfy the “exclusively” test in s.74 of ICTA, if the clothing is not “of a special character dictated by the occupation”.  This is so even if clothing of that standard would not have been purchased by the taxpayer but for the need to wear clothes of such a standard at work.  In the present case, on the evidence before it as a whole, the Tribunal reaches a similar conclusion in relation to the requirement that the Appellant meet a particular standard of fitness.  Whether or not the Appellant would have incurred the expenses for “health & fitness” but for his occupation, maintaining health and fitness is a general human need, even if it also serves the purposes of the trade or profession.  The Tribunal therefore finds that the expenditures on “health & fitness” served a dual purpose, and do not satisfy the “exclusively” test in s.74 of ICTA. 

Conclusion

50.  The Tribunal emphasises that its decision in this case is not based on any finding that as a general proposition, a stunt performer is entitled to deduct certain types of expenditures under s.74 of ICTA, or is not entitled to deduct others.  The question whether the “exclusively” test in s.74 of ICTA is satisfied is a fact-specific question, and the Tribunal has based its decision on the specific evidence and particular circumstances of this individual case.  The question is whether on the evidence and in the circumstances as a whole, the expenditures in question were “wholly and exclusively laid out or expended for the purposes of the trade or profession”.  For the reasons given, the Tribunal answers this question affirmatively in the case of the “medical expenses”, “chiropractor/massage” and “dentist” as claimed by him in his tax returns for the years ending 5 April 2003, 5 April 2004, 5 April 2005, and 5 April 2006.  The Tribunal answers the question negatively in the case of the deductions for “health & fitness” as claimed by him in his tax returns for the years ending 5 April 2003, 5 April 2004, 5 April 2005, and 5 April 2006.

51.  For these reasons, the appeal is allowed in part, to the extent indicated above.

Christopher Staker

TRIBUNAL JUDGE

RELEASE DATE: 10 March 2010