In Gemma Daniels v HMRC [2018] TC06640 an 'exotic dancer' was allowed relief for costumes, cosmetics and beauty treatment but was deemed to be careless for her own and her accountant's failure to correctly self assess the travel rules for the self-employed.
Ms Daniels was a self-employed dancer/stripper at Stringfellows she claimed tax relief for her work clothing, lingerie, dry-cleaning, make-up, beauty treatments and hairdressing (including hair extensions)
- She described her work as ‘getting naked in front of drunken men.’
- Her costumes were skimpy and glittery and also included nurses and schoolgirls uniforms when Stringfellows put on a “fancy dress” evening.
- Her work heels were high and her shoes were designed specially for pole dancing.
- Her make up was heavily applied in a theatrical manner.
- She had beauty treatments including fake tan, hair extensions and manicures etc
- Stringfellows was her only work place and she claimed tax relief for home to work travel.
- She managed her bookings, arranged and made costumes and wrote up her books at home.
- Most of her expenditure was not backed-up by receipts or primary records. HMRC did not challenge that it was not incurred.
- She engaged an accountant to prepare her Self Assessment tax returns.
HMRC enquired into her 2014 tax return, and then looked back to the years 2011 to 2013. HMRC were prepared to accept a figure of 20% of the expenses claimed as being allowable and then charged penalties under Schedule 24 penalties for error, on the basis that she had been careless. Following ADR suspended them.
The taxpayer appealed the assessment and penalties.
The FTT found that
- Ms Daniels’ expenditure on dresses, lingerie, stockings and shoes etc was akin to the acquisition of a costume by a self-employed actor for use in a performance, expenditure which in accordance with HMRC’s established practice is deductible and there was no duality of purpose: her clothes were not required for “warmth and decency” or worn outside work.
- There was no evidence to suggest that Ms Daniel’s expenditure on beauty treatments was anything other than for the purposes of her business.
- Travel expenses were all disallowed, the judge following the 2014 decision in Dr Samadian found that Stringfellows was the only place where she worked and travel from home to work was disallowed.
As to whether the penalties should be reduced.
- HMRC said there were no special circumstances. In evidence HMRC's officer Mr McGivern said that the decision was given by the manager of his line manager, and he had “no clue” as to the basis on which this decision had been reached.
- The FTT thus held that Mr McGivern’s decision on penalties was flawed. However, there were no “special circumstances” in this case and that, accordingly, no reduction should be made under paragraph 11 Schedule 24 FA 2007.
The appeals were allowed in part with only travelling expenses disallowed. Penalty determinations were to be reduced accordingly.
The judge made a further comment that Ms Daniels’ failure to keep primary records (invoices, receipts etc) fell short of the standards normally expected in respect of a taxpayer seeking to claim a deduction for income tax purposes. In future, we recommend that she should keep such records in respect of any future self-employment she may undertake.
Comment
Rather a harsh decision in terms of travel expenses. Whilst noting that this is only a FTT decision and we do not have all the facts it could have been argued that whilst the FTT had the benefit of being able to read the 2014 decision by the Upper Tribunal in Dr Samad Samadian v HMRC [2014] UKUT 0013 (TCC), which is after all, the only case that her really established the rules for taxpayers travelling to regular and predictable workplaces, neither the taxpayer (or their adviser) would have had that information to hand when preparing tax returns before then.
Links
Travelling expenses
If a journey is undertaken wholly and exclusively for business, all the costs associated with travel should be allowable for tax.
Clothing & workwear
Tax relief may be claimed on the cost of clothing provided that it is 'Wholly and exclusively incurred' for the purposes of the trade or profession.
Working from home
What expenses can you claim for working from home, if you are self-employed? Are there special rules and precedents for certain types of trade or profession?
Penalties for Error or Mistake (Sch 24 FA2007)
External links
Gemma Daniels v HMRC [2018] TC06640
