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There was little, if any, dispute between the parties as to the correct test to be applied to determine whether an interest is acquired “by reason of” employment. It is not necessary for HMRC to show
There was little, if any, dispute between the parties as to the correct test to be applied to determine whether an interest is acquired “by reason of” employment. It is not necessary for HMRC to show that the interest was acquired by reason only of employment. Nor is the test a “causa sine qua non” or “but for” test. The test that has found favour in subsequent authorities (see Mairs v Haughey [1992] STC 495 at 525 (Hutton LCJ (NI)), Wilcock v Eve [1995] STC 18 at 29 (Carnwath J) and Vermilion Holdings Ltd v Revenue and Customs Commissioners [2021] CSOH 45, [2021] STC 1874 at [45]-[46](Lord Campbell of Alloway dissenting) and [69] (Lord Doherty)) is that statedby Oliver LJ in Wicks v Firth [1982] 1 Ch 355 at 371:
“One is directed to see whether the benefit is provided by reason of the employment and in the context of these provisions that, in my judgment, involves no more than asking the question ‘what is it that enables the person concerned to enjoy the benefit?’ without the necessity for too sophisticated an analysis of the operative reasons why that person may have been prompted to apply for the benefit or to avail himself of it.”
The test can give rise to difficult questions where there may be more than one causative
effect of the relevant benefit.
- Heading
- Introduction
- The FTT Decision
- The UT Decision
- Introduction to the issues
- issue one – the principal private residence exemption
- The legislation
- dwelling–house as his only or main residence
- where the accommodation is provided for the better performance of the duties of the employment, and it is one of the
- No part of a gain to which section 222 applies shall be a chargeable gain if the dwelling–house or part of a dwelling–house has been the individual's
- “The application of section 222(8) is to be determined by the FTT in relation to all four
- The reconsideration shall be on the basis of the findings of primary fact made in the
- Findings of fact in the FTT Decision
- The documentary evidence
- The medical evidence
- The contract of employment
- The Appellant’s email
- The photographs
- The Appellant’s evidence
- Mrs Campbell’s evidence
- Officer Weir’s evidence
- Our impression of the witnesses
- Our findings of fact
- we have reached the following relevant findings of fact for the purposes of this decision
- Was it necessary for the Appellant to stay in his parent’s home in order to provide care to his father
- The Appellant’s intention to occupy
- Concluding comments in relation to our findings of fact
- Discussion
- By reason of employment
- “There are many decisions on the meaning of “by reason of employment” including in particular Wicks v Firth 56 TC 318. In John Charman v HMRC [2021] EWCA Civ 1804 (“ Charman ”) the Court of Appeal sai
- There was little, if any, dispute between the parties as to the correct test to be applied to determine whether an interest is acquired “by reason of” employment. It is not necessary for HMRC to show
- In Charman , The Court of Appeal emphasised that the FTT’s evaluation of this issue can only be challenged on appeal on limited grounds, at [46]
- There are numerous other authorities to the same effect On 25 October 2023, the Supreme Court released its decision in HMRC v Vermilion
- “If one approaches the question by asking, as suggested by Oliver LJ in Wicks v Firth , what it was that enabled Mr Campbell to enjoy the ability to reside in the family home, we do consider that the
- Necessary for the performance of the duties of the employment
- The Intention Condition
- Conclusion
- issue two – the penalties
- The legislation
- The terms of the remittance
- “ We instruct the FTT to determine, by way of oral hearing (either in person or remote)
- The reconsideration shall be on the basis of the findings of primary fact made in the
- Findings of fact in the FTT Decision
- The evidence
- The correspondence
- The explanation of the Penalties
- The witness evidence
- Our findings of fact
- Discussion
- Reasonable excuse
- – see the UT decision in Perrin v The Commissioners for Her Majesty’s Revenue and Customs [2018] UKUT 156 (TCC) (“ Perrin ”) at paragraphs [81] to [83]
- Special circumstances
- Conclusions