Victor Michael v The Commissioners for HMRC

Victor Michael (“the Appellant”) appeals against two closure notices both dated 12 January 2024 amending his self-assessment tax returns for the tax periods ending 5 April 2022 and 5 April 2023.

The amendments made by HMRC to those tax returns removed all the business travel and other expenses claimed by the Appellant save for certain amounts relating to professional regulatory fees (for the Nursing and Midwifery Council), laundry and shoes.

In respect of the tax year ending 5 April 2022, the Appellant claimed expenses that totalled £12,883.30 as follows: mileage - £7334.50; parking - £1362; food and drink - £2,270; laundry and ironing of uniform - £800; work shoes/work belt - £150; professional fees - £316.50; computer/laptop - £650.

In respect of the tax year ending 5 April 2023, the Appellant claimed expenses that totalled £5,357 as follows: mileage - £3,257; parking - £462; food and drink - £770; laundry and ironing of uniform - £400; work shoes/work belt - £151; professional fees - £317.

In relation to the expenses allowed by HMRC, these amounted to £454 for both the tax year ending 5 April 2022 and the tax year ending 5 April 2023. The total amount allowed by HMRC for each of those years was as follows: professional fees - £317; laundry - £125 (at standard fixed rate); shoes - £12 (at standard fixed rate).

A consequence of the removal of the claimed expenses as detailed above is that, for both tax years, the tax position of the Appellant changed from there being an overpayment of tax by the Appellant to there being an underpayment of tax by the Appellant.

The hearing of the appeal took place in Manchester on 21 October 2025. Mr Mooney and Mr Turnbull appeared for the Respondents who we will refer to as HMRC for ease of reference. The Appellant was not present at the hearing. The Appellant, in an email sent at 23:29 on 20 October 2025, stated that he had been having diarrhoea and that it was necessary for him to stay away from the court premises for infection prevention and control reasons. The Appellant stated also that he was happy for the appeal to proceed in his absence provided that all correspondence, documentation and evidence submitted from June 2024 to date was taken into consideration.

The Tribunal did not receive the Appellant’s email until shortly after 11am on 21 October 2025. The hearing had commenced shortly after 11am given that a decision had been taken to proceed with the hearing in the absence of the Appellant. The Appellant was paused on receipt of the Appellant’s email of 20 October 2025 so that it could be considered. Given that the Tribunal had available to it for consideration all of the documentation provided by the parties, the hearing continued.

The Tribunal considered the two Notices of Appeal, the Statement of Case of HMRC and all of the other documents contained in a document bundle of 192 pages and an authorities bundle of 559 pages. The Tribunal considered also the skeleton argument of HMRC and the email and document in response dated 16 October 2025 from the Appellant. The Appellant, in that document of 16 October 2025, referred to not being under the supervision of any person(s) during his time at Southport hospital. The Tribunal gave permission for that point raised by the Appellant to form part of the Appellant’s case and, consequentially, gave permission for HMRC to rely upon two decided cases in relation to that issue.

The Appellant is a registered nurse.

It is not in dispute between the parties that the expense claim of the Appellant relates to work undertaken for NHS Professionals.

The Appellant has provided details of his journeys from his home to his workplace for the tax years ending on 5 April 2022 and 5 April 2023.

The list of journeys for 2021/22 details a destination of Southport hospital and a return journey of 94 miles from the Appellant’s home in Manchester. The journey is the same for each of the 227 days listed.

For 2022/23, the Appellant has stated that the same return journey from his home to Southport hospital of 94 miles was undertaken for 77 days.

The Appellant has not provided supporting evidence, in the form of receipts or invoices or other documentation, in relation to the claimed expenses (save for the payment by direct debit to the Nursing and Midwifery Council) and has stated that the method of payment in relation to these expenses was cash.

In relation to travel expenses (mileage, parking and attributable subsistence), the point at issue is whether or not Southport hospital was the Appellant’s permanent workplace and, therefore, an ordinary commute from his home to his workplace. Sections 338 and 339 of the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”) are specifically relevant in that respect. The Appellant maintains that Southport hospital was a temporary workplace.

In relation to the other expenses, HMRC maintain that the Appellant was under no obligation to incur those particular expenses due to being the holder of his employment. In other words, the Appellant was not obliged to incur those particular expenses wholly, exclusively and necessarily in the performance of his duties in that employment. The Appellant disagrees. In that respect, section 336 ITEPA is specifically relevant.

The burden of proof is on HMRC to show that the enquiries into the tax years ending 5 April 2022 and 5 April 2023 were valid.

The burden of proof is on the Appellant to demonstrate that the closure notices issued were excessive, that Southport hospital was his temporary workplace and that he was obliged to incur the other expenses. The standard of proof is the balance of probabilities (more likely than not).

The most relevant provisions are contained in the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”).

Section 336 of ITEPA (Deduction for expenses: the general rule) states:

The general rule is that a deduction from earnings is allowed if-

the employee is obliged to incur and pay it as holder of the employment, and

Section 338 of ITEPA (Travel for necessary attendance) states:

“(1)

A deduction from earnings is allowed for travel expenses if-

(a)

the employee is obliged to incur and pay as holder of the employment, and

(b)

the expenses are attributable to the employee’s necessary attendance at any place in the performance of the duties of the employment.

(2)

Subsection (1) does not apply to the expenses of ordinary commuting of travel between any two places that is for practical purposes substantially ordinary commuting.

(3)

In this section “ordinary commuting” means travel between-

(a)

the employee’s home and a permanent workplace, or

(b)

a place that is not a workplace and a permanent workplace.

(4)

Subsection (1) does not apply to the expenses of private travel or travel between any two places that is for practical purposes substantially private travel.

(5)

In subsection (4) “private travel” means travel between-

(a)

the employee’s home and a place that is not a workplace, or

(b)

two places neither of which is a workplace.

(6)

This section needs to be read with section 359 (disallowance of travel expenses: mileage allowances and reliefs).

Section 339 of ITEPA (Meaning of “workplace” and “permanent workplace”) states:

“(1)

In this Part “workplace”, in relation to an employment, means a place at which the employee’s attendance is necessary in the performance of the duties of the employment.

(2)

In this Part “permanent workplace”, in relation to an employment, means a place which-

(a)

the employee regularly attends in the performance of the dues of the employment, and

(b)

is not a temporary workplace.

This is subject to subsections (4) and (8).

(3)

In subsection (2) “temporary workplace”, in relation to an employment, means a place which the employee attends in the performance of the duties of the employment-

(a)

for the purpose of performing a task of limited duration, or

(b)

for some other temporary purpose.

This is subject to subsections (4) and (5).

(4)

A place which the employee regularly attends in the performance of the duties of the employment is treated as a permanent workplace and not a temporary workplace if-

(a)

it forms the base from which those duties are performed, or

(b)

the tasks to be carried out in the performance of those duties are allocated there.

(5)

A place is not regarded as a temporary workplace if the employee’s attendance is-

(a)

in the course of a period of continuous work at that place-

Section 339A of ITEPA (Travel for necessary attendance: employment intermediaries) relates to where an individual provides services to another person (the client) and the services are provided not under a contract directly between the client or a person connected with the client and the worker but under arrangements involving an employment intermediary.

In the Notice of Appeal for the tax year of 2021/22, the Appellant refers to having incurred expenses of £12,883.30 by performing specific duties in his temporary place of work. The Appellant states that he lived in Manchester and was working at the North Manchester General Hospital which was his permanent place of work. Due to the Covid-19 pandemic, he was asked to work at the Southport hospital which, the Appellant maintains, was his temporary place of work.

The Appellant stated that Southport hospital was his temporary place of work because he spent less than 24 months there. The Appellant maintains that he was employed by Manchester University NHS Foundation Trust. The Appellant referred also to HMRC Guidance entitled ‘Ordinary commuting and Private’ (490: Chapter 3) published on 28 March 2014 (last updated 18 April 2024). In essence, the same points are made by the Appellant in relation to his appeal for the tax year of 2022/23.

HMRC’s view, in summary, is that the Appellant is to be treated as employed by NHS Professionals, that Southport hospital was his permanent workplace and that the travel expenses incurred by the Appellant relate to ordinary commuting and are not deductible for the purposes of tax.

Turning to a consideration of the issues, the Appellant has provided an unconditional offer of appointment to the role of Sister/Charge Nurse (Permanent) dated 26 May 2022 (with a start date of 13 June 2022) from Manchester University NHS Foundation Trust. We have not been provided with any documentation that the Appellant took up that offer or that he was employed by Manchester University NHS Foundation Trust during the periods relevant to his appeal. We find, based upon the available evidence, that the Appellant was an agency worker for NHS Professionals with respect to the work that he undertook at Southport hospital in issue in this appeal.

‘Permanent workplace’ is defined in subsection 339(2) ITEPA. It is any place that the employee regularly attends in the performance of the duties of the employment unless it is a temporary workplace.

‘Temporary workplace’ is defined at subsection 339(3) ITEPA. It refers to a place attended to perform duties of employment for the purpose of a task of limited duration or for some other temporary purpose. Subsection 339(3) is subject to subsections 339(4) and 339(5) ITEPA.

Subsection 339(5)(a)(i) ITEPA states that a workplace in not regarded as temporary if the attendance is, in the course of a period of continuous work, lasting more than 24 months. The Appellant maintains that the period of work at Southport hospital was less than 24 months. That appears to be the case. That said, HMRC state that even if that is the case, subsection 339(5)(a)(ii) must be considered.

Subsection 339(5)(a)(ii) provides that a workplace is not a temporary workplace if the employee’s attendance comprises, in the course of a period of continuous work at that place, all or almost all of the period for which the employee is likely to hold the employment. A period of continuous work at a place is a period over which the duties of the employment are performed to a significant extent.

We were referred to various case law by HMRC including to the case of Mainpay Ltd v Revenue and Customs Commisioners [2023] UKFTT 16 (TC). That case essentially concerned whether workplaces attended by workers in the course of their assignments via an employment agency were ‘permanent workplaces’. It was decided that each assignment was a separate employment and the workplace for each assignment was a permanent workplace.

Having considered all of the available evidence, we find that Southport hospital was the sole premises attended by the Appellant during the relevant periods of work. We find that such attendance was for all or almost all of the periods of work in issue. We find that Southport hospital was the permanent workplace of the Appellant. It was not a temporary workplace. We find that the travel and attributable expenses were ordinary commuting expenses and not deductible for tax purposes.

In relation to non-travel expenses, the test set out in section 336 ITEPA is whether or not the employee is obliged to incur and pay the expenses as holder of the employment and “whether or not the amount is incurred wholly, exclusively and necessarily in the performance of the duties of the employment”.

HMRC referred to various case law in the Statement of Case. The essence of that case law is that the provisions to be met in Section 336 ITEPA are notoriously rigid, narrow and restricted in their operation. The case of Norman v Golder (H M Inspector of Taxes) (1) (1942-1945) 26 TC 293 stated that food eaten and clothes worn are not wholly and exclusively laid out for the purposes of the trade, profession or vocation. “They are laid out in part for the advantage and benefit of the taxpayer as a living human being”. We find that the case law does not, in any way, support the claim of the Appellant.

We find that the non-travel expenses are not deductible expenses save for the expenses allowed by HMRC.

Finally, the Appellant contends that his expenses were allowed for the tax year ending 5 April 2021 which sets a precedent. HMRC contend that no precedent has been set, that HMRC only selects certain years for tax compliance checks and that the tax year ending 5 April 2021 has not, at this point in time, been subject to a compliance check but that it may be subject to a compliance check at some point in time in the future.

HMRC state also that the point made by the Appellant raises or implies an issue of public law involving a claim of legitimate expectation. Put simply, that the Appellant can reasonably rely on HMRC treating the tax years of 2021/22 and 2022/3 in the same way in which the tax year 2020/21 was treated. HMRC state that this Tribunal does not have the jurisdiction (or remit) to consider that issue because it relates to a public law matter. We agree and have not considered that issue.

Our decision is that the appeal is dismissed.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.