In Dr Sharat Jain v HMRC TC 04788 [2015], an NHS consultant who carried on private work at weekends from various hospitals was disallowed his home to travel and subsistence costs. They were not wholly and exclusively incurred: the FTT applied the reasoning from the Dr Samadian decision.
- The doctor was employed full time by the NHS and the flexibility of his contract also allowed him to carry out private medical work. In addition, he also provided medical reports for litigation purposes at weekends for a number of agencies.
- HMRC raised assessments for 2009/10 and 2010/11 in respect of his weekend work in litigation reporting, adjusting his profits upwards because he had incorrectly been cash accounting and it disallowed his travel and subsistence expenses.
The Doctor appealed to the First Tier Tax Tribunal (FTT).
The FTT found that:
- Dr Jain attended the same two hospitals, once a month at weekends, seeing clients during one day at one and over two days at the other. He could have seen his litigation clients at places other than hospitals, but did not apparently ever do so.
- He stayed overnight at local hotels in both cases.
- On returning home he prepared his the reports at his home, each taking approximately 2-3 hours to prepare, and using the services of a couple of secretaries.
The FTT, considered case law, determining that the doctor was not an itinerant trader, and, in relying on the 2014 decision in Dr Samadian v HMRC, decided that his visits to the hospitals for the litigation work were regular and predictable and that although home was a work place, the hospitals were also workplaces. Based on Samadian his travel and subsistence expenses were not wholly and exclusively incurred for the purposes of his profession (s34 ITTOIA 2015):
In terms of the accounting question, Section 25(1) of the Income Tax (Trading and Other Income) Act 2005 states that: ‘The profits of any trade must be calculated in accordance with generally accepted accounting practice, subject to any adjustment required or authorised by law in calculating profits for income tax purposes’.
The FTT found that the doctor was accounting on a receipts basis instead of accounting for work as invoiced, he profits were increased by £15k and so his appeal failed.
Comment
The Samadian decision has been a ground breaker for HMRC. It was not made until 2014 and with hindsight, had this case been reviewed following that earlier decision the parties would have been spared the cost of the tribunal. Its a shame that there is no extra mediation process that can intervene. On saying that, the facts were slightly different whilst Dr Samadian was holding clinics in a hospital, Dr Jain was seeing patients but not in the same clinical situation. A flaying instructor was another early casualty of the Samadian case too. It is definitely worth reviewing sole trader travel from time to time in order to avoid falling foul of the wholly and exclusively rule. See our detailed guide on this topic Travel (self employed).
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