In T Healy v HMRC TC01940  an actor worked away from home: but were his accommodation, travel and subsistence expenses wholly and exclusively incurred for the purposes of his business and so allowable for tax?
- Tim Healy, an actor based in Cheshire appeared in the West End of London in the musical, Billy Elliot for nine months, following three months of rehearsal.
- He rented a flat once the show started.
- His show contract could have been terminated at any time in the first six months, it was later extended for a further three months.
- He claimed tax relief on the costs of his accommodation, subsistence and travel to and from the theatre.
- His accountants had argued that as an actor his trade was itinerant by nature, e.g. his job involved travelling to and working at different locations, none of which was ever a permanent base, as such his travel and accommodation expenses were allowed for tax.
- HMRC had disallowed the expenses on the basis that the actor was not itinerant and had made London a base during the production.
The case went to the First Tier tax Tribunal (FTT), Judge King found that the actor had not moved to London, he was there only during the week for the purposes of performing on stage. She found his accommodation was allowable for tax on basic principles "wholly and exclusively - s34 ITTOIA 2005. The actor's subsistence expenses and taxis fares were disallowed on the basis that there was insufficient evidence to show the nature of the expense.
HMRC appealed this decision on a point of law and in August 2013 it was remitted by the Upper Tier Tribunal back to the FTT for a rehearing, see HMRC v Healy  UKUT 0337 (TCC).
Points to note
An interesting case because there is so little case law on actor's expenses. Made more interesting for advisers and their clients by the fact that it is being remitted back to the FTT for a rehearing.
An actor like Mr Healy has a job that involves moving from studio to stage across the UK and so it would have created a great deal of uncertainty had the case gone against him. It would not have been clear as to what accommodation costs would and would not qualify for tax relief in the future, as some production runs are very short (e.g. pantomime). Also, the terms of any actor's contracts vary: in many cases a production company will cover all costs of accommodation and living expenses. If this had occurred in Mr Healy's case he would have been spared the cost of the Tribunal.
Perhaps it is sensible for advisers to take a "back to basics" approach with actors and not assume that every expense is a given. Certainly, use of estimates for expenses can be dangerous.
This case was reheard by the FTT in 2014, with surprising results which decided the case in HMRC's favour the result is here.
Case reference: T Healy v HMRC  UKFTT TC01940
Upper Tribunal: HMRC v Healy  UKUT 0337 (TCC)
Referred back to FTT: Tim Healy v HMRC  UKFTT TC04425