Summary

Dr Samadian works full time as an NHS employee at two London hospitals where he has a permanent office with full administrative support.

Samadian also looks after private patients as a self-employed consultant. He holds weekly out-patient appointments at two private hospitals, where he just hires a room for the duration of his appointments. Once he has completed his assessment of the patient he prepares a treatment plan for them at his home office where he has access to resources such as a computer, medical library, basic medical equipment and prescription pads. When necessary, he admits patients to one of the private hospitals and they remain under his care as in-patients with him reviewing their condition during regular evening ward rounds.

Samadian's claim for travel expenses was challenged by HMRC in relation to his mileage:

• between the NHS hospitals on the one hand and the private hospitals on the other; and

• between his home and the private hospitals.

The Samadian case relied heavily on the case of Horton v Young (1971) 47 TC 60. In this case it was found that a self-employed bricklayer's house was his business base and that his travelling expenses between that base and seven different building sites were allowable.

HMRC argued that Samadian's journeys between his home and the private hospitals were 'commuting' on the basis that his profession was 'based at the private hospitals where he sees and examines his patients'. In relation to his travel between the NHS hospitals and the private hospitals HMRC submitted these were 'essentially a detour on a home to work commute'.

The tribunal panel, led by Judge Kevin Poole, accepted that Samadian had a place of business at home necessary for his professional practice. However, the panel found that because of a 'pattern of regular and predictable attendance' at the two private hospitals these were also 'places of business' and thus they did not accept that this case was equivalent to Horton.

In the decision the panel referred in particular to Lord Brightman's comments in Mallalieu v Drummond [1983] BTC 380 (which considered a claim for professional clothing worn by a barrister in court). Mallalieu was considered 'important and helpful in clarifying the distinction between 'object' or 'motive' on the one hand and 'effect' on the other, and in making clear that a court may look behind the conscious motive of a taxpayer where the facts are such that an unconscious object should also be inferred'.

In respect of Samadian the panel found that the object of his travel between the NHS hospitals and private hospitals was so that he could carry on his business away from where he was employed and the travel was thus 'not an integral part of the business itself'. With regard to the journeys between home and the private hospitals the panel decided that there must have been a 'mixed object' with at least part of the motive being to live away from the hospitals. The panel therefore disallowed in principle the costs of the disputed journeys. It was then left to the parties to reach a final agreement.

The relevant legislation was ICTA 1988, s74 for the years up to 2004/05 and ITTOIA 2005, s34 for 2005/06 onwards.

The other cases referred to in the judgment are Newsom v Robertson (1952) 33 TC 452, Sargent v Barnes (1978) 52 TC 335 and Jackman (HMIT) v Powell [2004] BTC 336.

Comment

This decision could affect many of the estimated 2.4m self-employed homeworkers in the UK.

There will be many doctors and other professionals who have for many years claimed mileage expenses for travel from their home office on the basis that this is their business base. If this decision is not overturned such claims will need to be reviewed, looking at the specifics of each case.

It is not yet known if Samadian will appeal the decision.

Meg Wilson, tax writer, CCH