In Jayamth Kunjur v HMRC [2021] TC08296, the First Tier Tribunal (FTT) found that a proportion of accommodation costs incurred by an employed dental surgeon were deductable from employment income. 

  • Mr Kunjur, a qualified dental surgeon, trained as a maxillofacial surgeon in London, between October 2012 and October 2016 while his home, wife and family were in Southampton.
  • Contractual employment duties required Mr Kunjur to be on-call two nights each week and one weekend in six.
    • This was referred to as ‘formal on-call’.
  • If any maxillofacial patient required assistance during the night, it was normal for Mr Kunjur to be called by the official on-call team for advice. This occurred most nights and Mr Kunjur regarded himself as permanently on-call.
    • This was referred to as ‘informal on-call’.
  • To discharge the formal on-call duties, accommodation within 30 minutes from the hospital was required along with a reliable telephone connection.
  • Mr Kunjur rented accommodation in Colliers Wood, a suitable distance from the hospital.
    • His family never visited this accommodation.
    • A telephone and Broadband package was obtained. Broadband was used to undertake research and write articles required during his training contract.
  • During the 2012-13 to 2016-17 tax years, accommodation costs of £39,000 were incurred. Mr Kunjur sought a deduction from employment income for these costs, which HMRC denied. Carelessness penalties totalling £7,600 were charged.
  • Mr Kunjur Appealed to the FTT.

Section 336 ITEPA 2003 allows a deduction from earnings for an amount where:

  • The employee is obliged to incur and pay it as a holder of the employment.
  • The amount is incurred wholly, exclusively and necessarily in the performance of the duties of employment.

The FTT partially allowed Mr Kunjur’s appeal, finding that:

  • Mr Kunjur was obliged to incur the expenditure on accommodation in Colliers Wood, as the holder of an employment.
    • As a member of the General Medical Council, Mr Kunjur was obliged to place the interests of his patients above his own. This determined the standard of performance required from Mr Kunjur as an employee.
    • That obligation must be treated as an obligation of his employment for the purpose of section 336.
    • Mr Kunjur was obliged to live close to the hospital to be able to perform his formal on-call duties.
  • Part of the accommodation expenditure was wholly and exclusively incurred.
    • The FTT considered the wholly and exclusively test would be met where there was no private benefit to the holder of the employment other than a mere incidental benefit. As Apportionment of costs is possible when computing business profits, the same approach should be applied in this context.  
    • The FTT concluded no personal benefit was obtained when Mr Kunjur was:
      • On formal on-call two nights each week and one weekend in six.
      • In attendance at the hospital.
      • Called when informally on-call.
    • There was no requirement to be close to the hospital when undertaking research and writing articles. A private benefit will have arisen in those periods.
  • When on formal on-call and present at the hospital and when waiting for a call, the accommodation was not being used in the performance of the employment. It was used in the performance of Mr Kunjur’s duties when he:
    • Was on informal on-call and gave advice over the telephone.
    • Carried out research to prepare articles required as part of his employment.

In conclusion, the FTT determined that a proportion of the expenditure would qualify for deduction under section 336 by reference to the actual duties performed at the accommodation.

The FTT considered that Mr Kunjur was entitled to rely on advice from his advisers and was not obliged to check that advice. The penalties for inclusion of the deduction for accommodation costs were reduced to nil.

Comment

Deductions under section 336 ITEPA can be notoriously difficult to obtain.

The section 336 test looks at the requirements of the job, rather than the circumstances of the individual doing it. This would usually mean that an expense is only deductible if each and every holder of that employment would have to incur it.

In this case, the FTT appears to have focused on whether the accommodation itself was used in the performance of Mr Kunjur’s employment duties rather than whether the cost was incurred in the performance of the duties of employment. Typically, the expense must be incurred in actually carrying out the duties of the job.

We wait to see if HMRC appeal the decision.

Useful guides on this topic

Accommodation: With travel or temporary workplaces
What cash allowances can be provided for business travel? What qualifies as business travel? What tax relief is available for accommodation?

Broadband
Can home-workers benefit from employer-provided broadband? What tax relief is available? How is it calculated?

Wholly and exclusively…toolkit
What does 'wholly and exclusively' mean? How do you determine if a cost is wholly and exclusively incurred for the purpose of a trade? What cases are there? 

External link

Jayamth Kunjur v HMRC [2021] TC08296


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