[2012] UKFTT 110 (TC)
TC01806
Appeal number
TC/2011/02880
Amendments
to self-assessment returns – whether expenditure wholly and exclusively for the
purposes of the business – expenditure on premises, wardrobe costs and
subsistence – appeal allowed in part – factual finding of misdirection
FIRST-TIER TRIBUNAL
TAX
LOUISE STONES Appellant
-
and -
THE
COMMISSIONERS FOR HER MAJESTY’S
REVENUE
AND CUSTOMS Respondents
TRIBUNAL: JONATHAN
CANNAN (TRIBUNAL JUDGE)
RAYNA
DEAN FCA
Sitting in public at Stoke on Trent on 16 January 2012
The Appellant appeared in
person with assistance from her father, Mr M Stones
Mrs S Whitley of HM Revenue
and Customs for the Respondents
© CROWN COPYRIGHT
2012
DECISION
Background
1. Miss
Louise Stones is a self-employed radio presenter who has a daily show on a
radio station called Signal 1 based in Stoke on Trent. At all material times
she presented and continues to present an early morning show between 6am and
10am.
2. Miss
Stones appeals against amendments to her self-assessment returns for tax years
2006/07, 2007/08 and 2008/09 following a review by HMRC which varied an earlier
decision amending those self-assessments. The decision to amend Miss Stones’ returns
was taken following an aspect enquiry which commenced on 14 May 2008. Mrs
Brenda Moxon an officer of HMRC conducted that enquiry and issued closure
notices on 24 September 2010. Miss Stones requested a review which was carried
out by Mrs Helen Durkin and notified to Miss Stones by letter dated 28 February
2011. The outcome of the review was to vary the amendments to the returns.
3. On
behalf of the Appellant we heard evidence from Miss Stones herself and from her
father, Mr Michael Stones. Mr Stones also assisted his daughter in the
presentation of her case. On behalf of the Respondents we heard evidence from
Mr Michael Childs and from Mrs Moxon.
4. The
aspect enquiry which led to this appeal was concerned with various expenses which
Miss Stones claimed were incurred for the purposes of her business.
5. The
expenses at issue for 2006/07, following the review decision may be summarised
as follows:
|
Description
|
Claim
£
|
Review Decision
£
|
Disallowed
£
|
|
Premises
|
2,148
|
1,445
|
703
|
|
Other Expenses
|
5,046
|
719
|
4,327
|
|
Travel/Subsistence
|
3,048
|
2,517
|
531
|
6. The
amount claimed by Mrs Stones in the 2006/07 return for ‘other expenses’ was
£5,311. We are not sure why HMRC state the figure claimed as £5,046, but in any
event the amount actually disallowed was £4,327.
7. The
sums which were disallowed for 2006/07 also formed the basis of amendments to
the self assessments for periods 2007/08 and 2008/09. In total, the expenses
disallowed for each of those years, including small sums in respect of which
there is no dispute, are as follows:
|
Tax Year
|
Disallowed
£
|
Additional Tax
£
|
|
2006/07
|
5,641
|
1,692
|
|
2007/08
|
5,877
|
1,763
|
|
2008/09
|
5,809
|
1,626
|
8. The
burden is on Miss Stones to satisfy this Tribunal that the amendments to the
self-assessments should be varied.
9. The
basis of Miss Stones’ appeal as presented to the Tribunal was, on its face,
straightforward. She claimed that two HMRC officers (Mr Childs and a Mr Shaun
Gloyne) had visited her in connection with completing her self-assessment
returns. They had both specifically advised her which expenses she could claim
and this included expenditure of the type at issue in the appeal. The substance
of Miss Stones’ appeal was set out in a letter she wrote to the Tribunal on 29
August 2011, copied to Mrs Whitley, the HMRC officer with conduct of this
appeal:
“My case is not to depict
whether or not my claimed ‘items’ are said to be for sole work purpose. This
bares no relevance to the issue at hand. My case is very simple – I sort
instruction from HMRC. I was misinformed. I followed HMRC Charter, yet I am
being persecuted? The issues at hand lie with the misinformant not myself. At
every stage, I have initiated and sort precise instruction from the HMRC. I
complied at all times to both their instruction and charter.”
10. Miss Stones
confirmed during the course of the hearing that the basis of her appeal was misdirection
by HMRC. That raises certain questions as to the jurisdiction of this Tribunal.
Notwithstanding the narrow basis of the appeal the evidence and questioning by
both parties was directed at times towards the wider issue of whether the
expenditure was allowable in law as being wholly and exclusively for the
purposes of Miss Stones’ business. It is convenient to deal with that matter
first because it is only once that question is answered that we can identify
whether there has been any misdirection by HMRC.
The Nature of the Expenditure
11. The expenditure
which was the subject of the enquiry may be more particularly described as
follows.
12. The “premises”
costs claimed by Miss Stones on her 2006/07 return were £2,148. They arose
because of the fact that she used one room in her home as an office in
connection with her business. For present purposes there is no dispute between
the parties that Miss Stones was advised by Mr Childs that she could take all
the costs associated with running her home such as mortgage interest, utility
bills and insurance. She should then divide that by 4 to reflect the number of
rooms in the house. The resulting figure would then be accepted as wholly and
exclusively incurred for the purposes of the business.
13. That is the
calculation that Miss Stones says she carried out in completing her returns. By
implication it meant that she had identified total premises costs of £8,592 for
tax year 2006/07.
14. The “other expenses”
identified by HMRC relate to various types of expenditure. Those in issue on
the appeal are broadly the costs of clothing, cosmetics, hairdressing and
accessories which Miss Stones says she incurred wholly and exclusively for the
purposes of her business. For present purposes we shall refer to these as
“wardrobe costs”.
15. The “travel/subsistence”
expenditure refers to the cost of travel between Miss Stones’ home and the
radio station and the cost of food and drink. We were told that she lived some
5 miles from the radio station. Miss Stones doesn’t drive and needs to leave
home at 4.30 in the morning so she takes a taxi. The travel element has been
allowed as a deduction by HMRC although this appears to have been on a
concessionary basis that is not intended to apply for the future. What is in
issue in the present appeal mainly relates to expenditure on food and drink.
The Law
16. Section 34
Income Tax (Trading and Other Income) Act 2005 provides as follows:
“34(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 proportion of the expense which is incurred
wholly and exclusively for the purposes of the trade. ”
17. The ‘wholly and
exclusively’ test is well known and well established. The leading authority is
the House of Lords in Maillalieu v Drummond 57 TC 330 where Lord Brightman gave
the opinion of the majority. The case concerned the costs incurred on clothing
for court wear by a barrister. The general issue was stated as follows:
“Whether any person
carrying on a trade, profession or vocation on his own account is entitled to a
similar deduction if he chooses to set apart clothes, underclothes and footwear
for use only at his place of work, and when proceeding to and from his place of
work.”
18. In answering
that question the House of Lords distinguished the object of the expenditure
and the effect of the expenditure in the following terms:
“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
purpose. 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 upon 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
upon 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
section 130.”
19. The House of
Lords held, by majority, that the cost of the clothing was not deductible. In
doing so Lord Brightman stated:
“... 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 the
taxpayer is inevitably limited to the particular conscious motive in kind at the
moment of expenditure.”
20. Similar
considerations arise in relation to expenditure on food and subsistence. Here
the leading case is the judgement of Templeman J in Caillebotte v Quinn (1975)
50 TC 222. The opening paragraph of the judgement puts the matter succinctly:
“The question is whether a
businessman who pays for his own lunch spends the money exclusively for the
purposes of his business: the answer in the present case is no.”
21. We were also
referred to Norman v Golder 26 TC 293 and Williams v HMRC TC00397. In all cases
in this area, the question posed and answered by the courts and tribunals is
whether there is duality of purpose in the expenditure. If there is, the
expenditure will be disallowable. If it is possible to identify a part of the
expenditure which is incurred wholly and exclusively for the purposes of the
business then the apportioned part may be allowable. That is the basis upon
which a portion of premises costs are treated as an allowable expenditure.
However, when it comes to subsistence and wardrobe costs it is difficult to see
how the cost can be apportioned.
22. There are
circumstances where duality of purpose may not be present. For example HMRC
accept that expenditure on costumes to an actor may be a deductible expense.
Indeed Miss Stones drew an analogy between her expenditure on clothing and the
costumes of an actor.
23. To some extent
there is a divergence between the law as stated in the authorities and the
position of HMRC as to what expenditure is allowable in practice. For example in
certain circumstances HMRC will allow the cost of food and drink when away from
the main place of business. Miss Stones gave us examples of certain types of
expenditure which accountants had told her were allowable. We think that the
discretion which HMRC operates in individual cases may have contributed to Miss
Stones’ view that she was not being treated fairly. We say more about that
below.
Treatment of the Expenditure Claimed
24. As far as
premises costs are concerned, HMRC’s position was that Miss Stones had not
provided evidence to support expenditure of £8,592 in 2006/07. From the records
Mrs Moxon had seen she had only been able to establish expenditure of £5,781.
Miss Stones maintained that the expenditure had been incurred. However she has
not produced to the Tribunal any analysis of the total figure claimed, nor any
receipts to support it.
25. HMRC contends
that the expenditure in relation to wardrobe costs and subsistence which they
identified from Miss Stones records during the enquiry was not deductible as a
matter of law. They considered that it failed the duality of purpose test. Miss
Stones criticised Mrs Whitley for raising the issue and questioning her about
it when it was not part of her appeal. Not surprisingly however, given that the
issue had been put to her, Miss Stones appeared to dispute HMRC’s conclusion
during the course of the hearing. Indeed both parties led evidence as to the
nature of the expenditure and made submissions as to whether it satisfied the
‘wholly and exclusively’ test.
26. In the
circumstances the evidence before us was far from complete. For example, whilst
we had schedules produced by HMRC as to the broad nature of the expenditure we
were not provided with copies of the underlying receipts. Nor did we have full explanations
as to the circumstances in which the expenditure was incurred. Miss Stones also
disputed the manner in which some of the expenditure was categorised and
described by HMRC in the schedules.
27. Given the nature
of Miss Stones’ appeal it is not necessary for us to resolve those factual
issues in relation to wardrobe costs. If it had been necessary to do so, and
subject to the items referred to below, we would have been driven to find in
favour of HMRC as to how the expenditure had been categorised and described. The
evidence of Mrs Moxon and the schedules produced would have been the best
evidence available to us.
28. In relation to
wardrobe costs, the items purchased appeared to be everyday clothing and
cosmetics. We agree with Miss Stones that Mrs Whitley’s reliance on the fact
that the articles were purchased from “ordinary high street shops” is not
relevant. Miss Stones stated that they were purchased for outside broadcasts
and other events where she was in the public eye. She produced a copy of the
Presenter Manual for Signal 1 which directs presenters to “Look like a ‘Star’ –
be smartly dressed and branded if possible” when doing outside broadcasts. She
also gave evidence that they comprised at least in part items of clothing which
she would not normally wear. We accept Miss Stones evidence in this regard, but
as a matter of law we would have found that this expenditure does not satisfy
the “wholly and exclusively” test described above.
29. We were not
satisfied from the evidence that we heard that the sum of £531 relating to
subsistence costs was wholly and exclusively for the purposes of the business.
Mrs Moxon produced a schedule of receipts totalling £439.66, which included for
example £39.85 described as “The Chester Grosvenor – food & drink” and
£28.05 “Fat Cat Café – drinks”. However there was no evidence as to the
circumstances in which many of the items were purchased. Mrs Moxon said in
evidence that she was not provided with receipts for the balance of £91. We
accept her evidence in this regard.
30. Again, as a matter
of law, we do not consider that the sum which was vouched, some £439, was
incurred wholly and exclusively for the purposes of the business.
31. In some small
respects it does appear that Miss Stones has not been given a deduction for
what is allowable expenditure incurred wholly and exclusively for the purposes
of her business.
32. Miss Stones had
claimed ¼ of the costs of her home phone, but from the evidence we have seen HMRC
disallowed that expenditure. We are satisfied that the phone costs can be
apportioned as to business use and personal use. There only appeared to be
evidence of 3 phone bills in 2006/07 but we are prepared to accept that a
fourth bill would have been paid. We find that Miss Stones is entitled to relief
for expenditure of £109 in this regard.
33. Miss Stones gave
evidence that a sum of £150 had been spent on a filing cabinet for business use.
It does not appear that Mrs Moxon or Mrs Durkin had been made aware that this
sum related to a filing cabinet and as such it was disallowed. In the ordinary
course a filing cabinet would qualify for capital allowances. We are satisfied
that Miss Stones was entitled to relief for this expenditure.
34. These items fell
within the category of premises costs disallowed so that the expenditure
allowed under this heading for 2006/07 should be increased accordingly together
with any consequential adjustment for 2007/08 and 2008/09.
35. It also appears
that Mrs Moxon and Mrs Durkin had disallowed a sum of approximately £130 which
they thought related to gifts. We accept Miss Stones’ evidence that she did not
claim any sums in relation to gifts and that the sum of £130 did relate to
allowable business expenditure.
36. This item fell
within the category of other expenses so that the expenditure allowed under
this heading for 2006/07 should be increased accordingly together with any
consequential adjustment for 2007/08 and 2008/09.
Misdirection
37. There are issues
generally as to what jurisdiction this Tribunal has in cases where an appellant
seeks to rely on a misdirection given by HMRC where that misdirection gives
rise to a legitimate expectation. Indeed different Tribunals have given
different answers to that question of jurisdiction. See for example the
different approaches of the Tribunal in St Mary Magdalene College Cambridge
v HMRC [2011] UKFTT 680 (TC) and Noor v HMRC [2011] UKFTT 349 (TC) when
considering the decision of Sales J in Oxfam v HMRC [2010] STC 686.
38. The position of
HMRC throughout the appeal process has been to deny any such misdirection. Both
parties have led evidence as to whether or not there was any misdirection. In
closing submissions Mrs Whitley confirmed that if the Tribunal were to find
that HMRC had misled Miss Stones, and that she had relied on wrong information,
then it would not seek to resile from the information it had provided to Miss
Stones. In the particular circumstances of this case we consider that is an
entirely proper approach by HMRC. It is therefore not necessary for us to
express any view as to the jurisdiction of the Tribunal in cases of
misdirection. We do however make findings of fact on the question of
misdirection so that Mrs Whitley’s approach can be put into effect by the
parties.
The Appellant’s Case on
Misdirection
39. Miss Stones’
evidence was that she became a self-employed radio presenter in 2001. In 2003
she came to complete her first self-assessment tax return and sought advice
from a specialist team at HMRC which dealt with people new to self-employment.
As a result she met with and was visited by Mr Childs. From the evidence we have
heard it seems that Mr Childs met Miss Stones on 3 occasions. Initially there
was a brief meeting at the radio station. Thereafter Mr Childs made two visits
to Miss Stones’ home, one in 2003 and one in 2004. It is during the course of
these visits that Miss Stones states she was advised as to what expenditure she
could claim and that she followed that advice in completing her self-assessment
returns for 2003, 2004 and subsequent years.
40. The principal
factual issue between the parties prior to the hearing was as to the nature and
extent of the advice given by Mr Childs in his meetings with Miss Stones.
Following the oral evidence it appeared that there was really very little
between the various witnesses as to what happened at the meetings.
41. Mr Childs stated
that in 2003 he worked in a business support team of HMRC and his role involved
giving presentations to newly self-employed taxpayers and also visits to their
premises to help with record keeping and filling in forms. Understandably he
did not claim to have a clear recollection of the advice given. His evidence
was that he would have advised Miss Stones to keep all receipts, to summarise
them and to retain a diary so that at the end of the year she would be able to
easily extract the figures for her return. We accept that evidence.
42. Miss Stones’ oral
evidence was directed towards what Mr Childs had told her in relation to the 3
categories of expenditure referred to above. In addition, Miss Stones’ father
gave evidence that he had been present at the meetings with Mr Childs and
confirmed Miss Stones’ account of those meetings. He had more experience of
dealing with such matters than his daughter and had specifically asked Mr
Childs to explain everything to her.
43. In relation to
premises Miss Stones stated that she was told to add all the premises costs up
and to divide by 4, thus claiming ¼ of the costs because there were 4 rooms in
her home excluding the bathroom. Mr Childs’ evidence was to the same effect and
we find that this is indeed what Miss Stones was told. Whilst Mrs Moxon sought
to use a less favourable formula, the original approach was re-instated by Mrs
Durkin on review.
44. In relation to wardrobe
costs Miss Stones stated that she had discussed this with Mr Childs and that
their discussion was in relation to her role as a performer. That encompassed outside
broadcasts, promotional appearances and visits to local schools and charities.
Miss Stones states that she was told that she could claim relief for wardrobe costs
associated with such appearances.
45. Mr Childs
thought he would have advised her that wardrobe costs when she was actually on
air at the radio station would not be allowable. If she was on stage or in
public presenting then he would have advised her that the expenditure might
have been allowable if it involved, for example, a special garment. He
clarified that by saying that when she was appearing “in the spotlight” or at
an outdoor event, at that time if he had been asked whether the cost of
appropriate clothing and make-up was allowable he would probably have said yes.
He regarded Miss Stones as “Louise Stones the public personality” and at that
time would not have considered it unreasonable for her to claim for wardrobe
costs.
46. We find that Mr
Childs did give advice to Miss Stones in these terms. In particular he advised
that the wardrobe costs would be allowable in circumstances where she was
appearing in public.
47. In relation to
subsistence¸ Miss Stones’ evidence was that she was told by Mr Childs that she
could claim the cost of a meal if she was more than 5 miles from her business
base. She regarded her business base as her home, and indeed HMRC have allowed
the costs of travel between her home and the radio station on that basis. Her
recollection was that Mr Childs had said it was “reasonable costs” which could
be claimed and she took this to mean up to about £10.
48. Mr Childs
evidence was that in 2004 he operated what was known as “the 5’s rule”. Namely
the cost of subsistence was allowable if the taxpayer was more than 5 miles
from their normal place of work for more than 5 hours and up to £5. The
position was analogous to employees in the civil service. We accept Mr Childs
evidence that he gave advice to Miss Stones in these terms.
49. Until the day of
the hearing Miss Stones relied only upon her meetings with Mr Childs as the
source of her information as to what expenditure was allowable. She also relied
upon a handwritten document which she said in correspondence had been completed
by Mr Childs during the course of one of those visits. It is headed “Tax
Return Figures Sept 2005” and Miss Stones clearly thought that she had met
with Mr Childs in the autumn of 2005. However shortly before the hearing she
saw for the first time Mr Childs’ witness statement in which he stated that
none of the handwriting on the document was his.
50. On the morning
of the hearing Miss Stones produced for the first time a letter from Mr Shaun
Gloyne dated 20 September 2005. Mr Gloyne was a business adviser with HMRC. The
letter refers to a meeting he had with Miss Stones the previous day and
continues:
“We discussed the
completion of your Self-Assessment return, the need to breakdown your expenses
into the appropriate categories … ”
51. Miss Stones gave
evidence to the effect that she had explained to Mr Gloyne what Mr Childs had
told her in the previous years and that he had confirmed what she had been told
by Mr Childs. We accept that evidence.
52. At the start of
the hearing we invited HMRC to consider whether they wished to call Mr Gloyne
to give evidence as to his meeting with Miss Stones. Mrs Whitley indicated that
she would like to hear the evidence before taking that decision. We regarded
that as unsatisfactory as Miss Stones had already outlined the circumstances in
which the meeting with Mr Gloyne had taken place and it would mean hearing Miss
Stones evidence as to the meeting in the absence of Mr Gloyne with the appeal
going part heard possibly for some months before hearing Mr Gloyne’s evidence.
We also took into account Miss Stones’ ill health, and the further stress and trauma
she would experience if the matter went part heard. In the circumstances Mrs
Whitley decided to proceed with the appeal in the absence of Mr Gloyne. In the
light of Mr Childs evidence described above we do not think that HMRC were at
all prejudiced by this approach.
53. Most of the
figures on the handwritten document are in the handwriting of Miss Stones. All
the figures relate to the calculation of tax and national insurance for the
2004/05 tax year once the net profit figure had been ascertained. However it is
notable that Mr Gloyne wrote down the figure of £13,806 as being Miss Stones’
net profit for the year. Miss Stones evidence was that Mr Gloyne had calculated
that figure for her during the course of the meeting. He had done so by
identifying and categorising all her expenditure and that he looked at all her
receipts for that year. We have not heard evidence from Mr Gloyne. We accept
Miss Stones’ evidence that this was how the net profit figure was calculated
for tax year 2004/05.
54. The figures
which Miss Stones later put on her 2004/05 return included the net profit of
£13,806. She also identified on that return the expenditure taken into account
in calculating the profit figure. That included figures of £234 (premises),
£4,542 (other expenses) and £2,400 (travel and subsistence).
55. We acknowledge
Mrs Whitley’s point that the premises figure was much less than that claimed
for the years in question in this appeal. She invited an inference that Miss
Stones could not have been following the advice of Mr Childs and Mr Gloyne when
she claimed a much larger figure in 2006/07. Miss Stones stated that she must
have made a mistake and we accept her evidence. In any event, there is no issue
about what Miss Stones was told about premises costs.
56. It is notable
that the expenditure under the other headings is of a level comparable to that
which Miss Stones claimed in 2006/07. We accept Miss Stones’ evidence that she
prepared her return for 2004/05 on the basis of Mr Childs’ advice and that this
advice was confirmed by Mr Gloyne when he visited Miss Stones in September
2005.
57. We also accept
Miss Stones’ evidence that her return for 2006/07 was prepared by her on the
basis of the advice she had been given by Mr Childs and Mr Gloyne as set out
above. She stated, and we accept, that she planned her personal finances on the
basis of the tax calculated in accordance with that advice. Having said that,
the tax treatment did not affect her decision whether to incur the expenditure
in issue.
58. Mrs Whitley drew
our attention to the Notes on self-employment accompanying the 2006/07 tax
return. In relation to ‘other expenses’ those notes state in terms that
“ordinary everyday clothing even if bought specially for business use” is
disallowable. However, even if Miss Stones had read that note we find that she
was entitled to take the view that it referred to a general rule, and that the
more specific advice she had received from 2 HMRC officers remained good.
59. Miss Stones came
to make her 2007/08 self-assessment return on 29 October 2008. She completed it
on the same basis as the 2006/07 return continuing to rely on the advice given
to her by Mr Childs in 2003 and 2004, and by Mr Gloyne in 2005. However, by
this stage Mrs Moxon’s enquiry was well under way. Miss Stones was aware that
Mrs Moxon was arguing that the wardrobe costs and subsistence expenses were not
allowable for tax purposes.
60. At that stage,
Miss Stones was not entitled simply to disregard what Mrs Moxon was telling her
in relation to the wardrobe costs and subsistence expenses. On any view
therefore, either pursuant to Mrs Whitley’s concession or on the basis of any
jurisdiction this Tribunal might have in a case of misdirection, Miss Stones
cannot say that it is unfair for HMRC to resile from the previous advice.
Indeed, it would be unfair on taxpayers generally if Miss Stones were able to
insist on entitlement to relief where none would otherwise be available in the
absence of clear unambiguous advice to the contrary. By October 2008 Miss
Stones did not have clear and unambiguous advice because Mrs Moxon was telling
her that the expenditure in question was not allowable.
Conclusions
61. We now consider
the significance of our findings in the context of Miss Stones’ appeal against
the amendments to her returns for periods 2006/07, 2007/08 and 2008/09.
62. In relation to
2006/07, we have found that Miss Stones was entitled to additional allowable
expenditure of £389. We are not aware of how these items have been treated in
the amendments for 2007/08 and 2008/09. If the parties cannot agree then either
party can make an application to this Tribunal and we will resolve the issue. Any
such application should be made within 35 days from the date this decision is
released. We would hope however that it is capable of agreement.
63. We have also
found that Miss Stones prepared her return for 2006/07 on the basis of advice
given to her by Mr Childs and Mr Gloyne. Notwithstanding that advice, Miss
Stones was aware that expenditure had to be evidenced by receipts or otherwise.
In the absence of receipts or other evidence as to the premises costs, HMRC
were entitled to disallow the premises costs of £703, save to the extent that
that figure includes any or all of the £389 referred to above. HMRC were also
entitled to disallow the £91 of subsistence costs which we have found were not
vouched.
64. In relation to
wardrobe costs and the balance of subsistence costs, we have found that Miss
Stones prepared her return on the basis of advice given by HMRC. For the
reasons given above, this amounted to a misdirection upon which Miss Stones was
entitled to rely in preparing her 2006/07 return and she did in fact rely upon
it. In the light of Mrs Whitley’s submission we would expect HMRC to amend the
review decision to allow Miss Stones’ claim under these headings for 2006/07.
If the parties are unable to reach agreement as to the appropriate adjustment for
any reason then either party can make an application to this Tribunal and we
will resolve the issue. Any such application should be made within 35 days from
the date this decision is released. We would hope however that it is capable of
agreement.
65. In those
circumstances, but subject to any adjustment arising from the £389 referred to
above, we confirm Mrs Durkin’s amendments to the self-assessment returns for
2007/08 and 2008/09.
66. Miss Stones
clearly has a strongly held view that throughout the process of the enquiry she
has been treated as though she was dishonest. She also feels that HMRC has, in
her words tried to “bamboozle her” with references to legal cases and
has not properly handled the enquiry in accordance with the HMRC Charter. We
were also made aware that Miss Stones does have significant health issues. She
takes the view that HMRC’s conduct of the enquiry has been detrimental to her
health. We can see that a tax enquiry can, of its nature, have the potential to
adversely affect the health of a taxpayer. We have no general jurisdiction in
relation to such matters, and in any event we make no criticism of HMRC in
their conduct of the present enquiry. Mrs Moxon has done the best she could on
the information provided to her. The adjustments we have made to the self-assessments
do not reflect any criticism of Mrs Moxon or Mrs Durkin.
67. 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.
TRIBUNAL JUDGE
RELEASE DATE: 8 February 2012
