The FTT case related to a request from Clunes that his future tax appeal should be heard in private, and that any resulting published decision should be anonymised. HMRC argued that this is not an appropriate case for such a direction as the relevant criteria were not met. [Martin Clunes and the Commissioners for Her Majesty’s Revenue and Customs, [2017] UKFTT 0204, TC05692].

The tribunal heard that Clunes will argue he underwent the treatment for the purposes of his acting trade, and so should be able to claim the cost as an expense. However, HMRC maintains that the expense is disqualified for relief by virtue of s 34 of the Income Tax (Trading and Other Income) Act 2005.

Clunes’ tax appeal is against a closure notice by which his self assessment return for the year 2012- 13 was amended so as to disallow the claimed expense.

In his analysis of the claim for anonymity, the FTT judge stated: ‘I should make it clear from the outset, lest it be thought otherwise, that this is not a tax avoidance case, and HMRC do not suggest that it is.

‘It is also not part of HMRC’s case that the amount claimed is excessive or subject to attack for any similar reason, and it is undisputed that Mr Clunes has paid the entirety of the amount for which he has claimed relief.

‘The only question in the appeal is whether the relief must be denied because, as s 34 puts it, the expense was “not incurred wholly and exclusively for the purposes of the trade”.’

At the FTT, Clunes’ accountant argued that although there is a public interest in the deductibility of the cost of cosmetic treatment incurred by an actor it is not necessary for the public to know the identity of the actor.

If, however, his identity was revealed he might become the target of mockery and jokes and, more importantly, his public perception, or what might be described as his celebrity persona, could be damaged.

The argument was that Clunes was seeking to protect the confidentiality of information in circumstances in which he had a legitimate interest in doing so.

However, the judge pointed out that any taxpayer who was not in the public eye but who, for example, would prefer his friends or neighbours not to know of his financial affairs, would find it impossible to persuade the tribunal to grant him anonymity.

The judge said he recognised that the revelation of Clunes’ identity ‘does have the potential to cause him some collateral embarrassment’. However, he argued that the reasons which Clunes used to support his application were, in fact, the same reasons why it would not be sufficient simply to describe him as ‘an actor’ when the decision was released after the hearing of his tax appeal.

The judge said: ‘The question in the appeal will not be whether male actors, as a group, can legitimately claim relief for expense of the kind in issue, but whether, in Mr Clunes’ case, the expense was incurred wholly and exclusively for the purposes of his trade.

‘It is entirely possible that expense of the kind in issue here might be incurred by actor A for undeniable qualifying reasons, while the same expense incurred by actor B could be described only as a vain indulgence, and there are plainly many possible positions between those extremes.

‘I do not see how the tribunal will be able to determine where on the scale Mr Clunes falls without reference to him as an individual, and by reference to his personal characteristics; and I do not see how the public interest in the fair administration of tax can be satisfied by the release of a decision which, by concealing those characteristics, makes it impossible for the reader to reach a full understanding of the reasons why the appeal has been determined as it has.’

Clunes has therefore lost his appeal for anonymity when his tax appeal is heard.

The ruling, Martin Clunes and the Commissioners for Her Majesty’s Revenue and Customs, [2017] UKFTT 0204, TC05692 is here

Report by Pat Sweet