Spc00668`	

INCOME TAX – EMPLOYMENT INCOME – EXPENSES –costs of additional food, nutritional supplements and medicines of professional rugby union prop forward – whether deductible as incurred exclusively and necessarily in the performance of duties – no – Appeal dismissed

SPECIAL COMMISSIONERS

	JOHN SIMON EMMS  	Appellant

	- and -

	HER MAJESTY’S REVENUE and CUSTOMS	Respondents

			Special Commissioner : MICHAEL TILDESLEY OBE	 

Sitting in public in Cardiff on 24 January 2008

Geoff Davies of Parkes Consultants for the Appellant 

Nicola Shaw, counsel instructed by the Solicitor for HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2008

DECISION
The Appeal
1.	The Appellant was appealing against amendments to his self assessment tax returns for 1999/2000, 2000/2001 and 2002/03.
The Dispute
2.	The dispute concerned whether the following costs incurred by the Appellant were deductible from his income earned as a professional rugby union prop forward under section 198 of the Income and Corporation Taxes Act 1988 (ICTA):
(1)	Additional food in the sums of £2,640, £3,250 and £3,900 for the respective tax years ended 5 April 2000, 5 April 2001 and 5 April 2003.
(2)	Mylopex, a nutritional supplement, in the sums of £761, £800 and £887 for the respective tax years ended 5 April 2000, 5 April 2001 and 5 April 2003.
(3)	Omega 3 oils in the sums of £51, £53 and £59 for the respective tax years ended 5 April 2000, 5 April 2001 and 5 April 2003.
(4)	Slow release multi-vitamins in the sums of £86, £88 and £98 for the respective tax years ended 5 April 2000, 5 April 2001 and 5 April 2003.
(5)	Glucosamine sulphate in the sums of £86, £88 and £98 for the respective tax years ended 5 April 2000, 5 April 2001 and 5 April 2003. 
3.	The Appellant contended that he incurred expenditure on additional food, nutritional supplements and medicines to maintain the required level of physical fitness for his employment as a professional rugby union prop forward. The Respondents countered that the expenditure did not qualify as a deduction from earnings because it was not incurred exclusively and necessarily in the performance of his employment duties.
The Law
4.	Section 198 of ICTA sets out the legal requirements for determining whether an employee can claim tax relief on expenditure incurred for the performance of his employment. Section 198 provides that
“(1) If the holder of an office or employment is obliged to incur and defray out of the emoluments of the office or employment
(a)	qualifying travelling expenses, or
(b)	any amount (other than qualifying travelling expenses) expended wholly, exclusively and necessarily in the performance of the duties of the office or employment,
there may be deducted from the emoluments to be assessed the amount so incurred and defrayed”.
The Evidence
5.	I heard evidence from the Appellant. The witness statements of Euan Murray, a professional rugby union prop forward, Simon Sheldon MSc BSc, a performance coach employed by Northampton Saints Rugby Union Club, and Damian Hopley, Chief Executive of the Professional Rugby Association were submitted in evidence on behalf of the Appellant. The Respondents questioned the weight to be attached to the statements as the makers were not in attendance and could not be cross-examined on their contents. It transpired, however, that the Appellant had written to the Respondents asking them to indicate whether the makers of the statement should attend the hearing. The Appellant received no response to his enquiry.  I decided to admit the statements, the contents of which corroborated the Appellant’s evidence, although they were more pertinent to his present employment with Northampton Saints Rugby Union Club which was not the subject of the Appeal.
6.	The joint bundle of documents received in evidence contained letters dated respectively 30 November 2004 and 7 December 2004 from the Financial Controller of  Bath Rugby Union Club, and  the Fitness Coach and Nutritional Adviser to Llanelli Scarlets Rugby Union Club. Essentially the letters contained a statement from both clubs that it was not a requirement of a rugby union player’s contract to take nutritional supplements. The Appellant requested the Respondents to produce the writers of the letters to give evidence. Unfortunately the Respondents could not recall receiving a copy of the request. I decided that the statements did not add to the information contained within the contracts of employment, and disregarded them.
The Facts
7.	The Appellant was a professional rugby union prop forward. He was employed by Llanelli Scarlets Rugby Union Football Club for tax year 1999/2000, and Bath Rugby Union Football Club for tax years 2000/01 and 2002/03.
8.	Under his  contract of employment with Llanelli the Appellant was required to perform the following specific duties, amongst others:
(1)	Attend all requisite club training sessions.
(2)	Extend himself during those training sessions with maximum effort concentration and co-operation.
(3)	Perform with the greatest endeavour, skill, discipline and commitment when selected to represent the club.
(4)	Participate in and extend himself to maximum effort during all Club fitness tests.
(5)	Undertake such training whether on an individual basis or during Club training sessions to achieve and maintain the fitness levels reasonably and properly required from time to time by the fitness adviser.
9.	The contract permitted Llanelli Rugby Union Club to impose fines against players who breached the code of conduct, in particular, a player who failed to meet fitness testing criteria was liable to a one-off fine of £50 and subjected to a fitness improvement programme set by the Club’s fitness adviser. 
10.	The Appellant’s contract of employment with Bath Rugby Union Club required him to perform the following specific duties amongst others:
(1)	Attend all matches (regardless of which team) training sessions and promotional activities, as and when required by the Team Manager, unless prevented from doing so by reasonable cause provided the player will not be required to be involved in promotional activities for more than 20 hours per month (in aggregate and including travel time to and from the Club’s premises or his home whichever is the shorter).
(2)	Use his best endeavours to maintain his form and health and the high standard of physical fitness as reasonably laid down from time to time by the club so as to be available for regular selection for matches provided the player shall not be under any obligation to make payments to third parties in meeting his obligations under this clause.
11.	Under the contract Bath Rugby Union Club identified failure to maintain the high standard of physical fitness on the part of a player as an act of gross misconduct justifying instant dismissal and termination of the contract. 
12.	There was no express requirement in the Appellant’s contract of employment with either Bath or Llanelli Rugby Union Football Clubs which required him to incur expenses in respect of additional food, nutritional supplements and medicines.
13.	The Rugby Football Union Guide for Coaches Fitness and Conditioning included a chapter on Nutrition: eating to play which examined the need for a balanced diet for rugby union players in order to maintain a healthy lifestyle and to perform on the rugby pitch. I set out below the following extracts relied upon by the parties:
“The body requires fuel in order to function to its full potential, gaining this fuel from the quantity, quality and type of food eaten. This in turn determines the amount of fuel and how it is produced, and subsequently your levels of performance”.
“An athlete’s diet serves two main purposes: first to provide energy to train and perform; second, to promote growth, repair and recovery from this physical exertion”.
“Proteins are essential for growth and repair of all cells in the body. They play a crucial role in virtually all biological processes in the body. The three main functions of protein are:
i)	Growth, development and repair of muscle tissues.
ii)	Regulation of metabolism through reactions controlled by enzymes.
iii)	An energy source when fat or carbohydrate stores are low”.
“Vitamins and minerals cannot be made by the body and have to be supplied through your diet. These essential nutrients help to prevent disease and assist in the production of energy, red blood cells and the growth and repair of muscles. The more you exercise, the more vitamins and minerals you require”.
“Exercising causes the body to produce heat, as a result of which we sweat to remove it and to prevent body temperature from rising effectively. The increased rate of breathing also results in more fluid being lost as water as part of the respiratory process. Failing to replace this fluid loss will result in the increased onset of fatigue and dehydration, which limits performance and can also have serious health implications such as heat stroke”.
“Players should be weighed before and after playing and training this will establish the amount of body weight lost through sweating and provides information that can be used to establish hydration strategy. During matches and intense training it is not uncommon for players to lose between two and four kilograms of body weight”.
14.	The position of prop forward played by the Appellant was unique in the rules of professional rugby union. Only a player with the physical strength and build of a prop forward was permitted under the rules to play in that position. This restriction was imposed to prevent the crippling neck injuries that could happen from the physical strains placed upon prop forwards in scrums. If, for whatever reason, a club has insufficient recognised prop forwards during a match, the scrum must not be contested. 
15.	In order for the Appellant to perform his role as a prop forward it was necessary for him to maintain a certain level of body mass and strength which was achieved by a rigorous training programme and a high calorie and protein diet. The Appellant received advice on his diet from the performance and fitness coach employed by the Rugby Union Clubs. The Appellant required on average a daily intake of 4,500 calories compared with 3,000 calories which was the usual intake for a male of the same age as the Appellant. The amount of calories consumed by the Appellant, however, would vary day by day depending upon the type of activity undertaken, and its relationship in time to a competitive match. The calculation of the actual calories required was a scientific exercise to secure the right intake for training and playing with a reduction in the training and calorie intake on the day before a competitive match.
16.	 The Appellant kept a diary of the meals taken which essentially showed that he ate three large meals a day consisting of chicken breast, turkey, fish, boiled eggs, pasta, vegetables and fruit with snack breaks between the meals. The Appellant was unable to secure the required calorie level through a diet of natural foodstuffs. He was required to supplement his diet by the consumption of a protein drink under the brand name of Myoplex, which contained the equivalent in protein of two lean chicken breasts. The liquid supplements provided an accessible source of protein, more easily absorbed by the body than protein in a solid form which was physically uncomfortable and potentially dangerous for persons engaged in a contact sport. The Appellant also took slow release multi-vitamins which replaced the minerals lost by his body through heavy physical exertion
17.	 The Appellant complied with his high calorie and protein diet supplemented by protein drinks and multi-vitamins to maintain his fitness levels required for his position as a prop forward. The eating of food was necessary to replace the body weight lost after physical exertion, which was three kilograms in the case of a competitive game. The Appellant disliked aspects of his diet, and was denied more pleasurable foodstuffs, particularly those with  high sugar content. The Appellant pointed out that a diet comprising 4,500 calories daily would generally be regarded as unhealthy. 
18.	  The Appellant restricted his claim for tax relief to the cost of the additional food as represented by the additional calories consumed by him in excess of the 3,000 daily calories required for moderately active male. The Appellant assessed the actual claim as 50 per cent of his annual food expenditure. The 50 per cent figure was derived from the submissions of nutritionists to the Respondents when rugby union became professional in 1995. The nutritionists stated that a professional rugby union player required 6,000 to 7,000 calories daily, which was higher than the Appellant’s average daily consumption of 4,500.
19.	The Appellant purchased Glucosamine and Omega 3 oils to repair and protect joints and increase their suppleness. The Appellant’s joints were susceptible to injury arising from the physical confrontations encountered by a prop forward, particularly in the scrum. In the Appellant’s view the Respondents’ refusal of relief for the Glucosamine and the Omega 3 oils was inconsistent with their decision to give relief for the Appellant’s expenditure for neoprene bandages and liniment which was incurred for the purpose of protecting muscles and joints. The Respondents regarded the bandage as part of the Appellant’s kit, whilst they made a mistake in giving relief for the costs of the liniment.
20.	The Appellant agreed with Respondents’ counsel that the food he ate was essentially the same food comprised in healthy diets. Further members of the public could purchase the protein drink, vitamins and oils from High Street retailers. The Appellant accepted that his diet and food expenditure was governed by his unique physical make-up. The precise diet for rugby prop forwards would be determined by the demands of the job and their individual physical characteristics including body mass and metabolic rates.
Reasons for Decision
21.	The Appellant contended that his expenditure on additional food, nutritional supplements (which include the vitamins) and natural medicines were incurred wholly, exclusively and necessarily in the performance of his duties as a rugby union prop forward. He contended that his contracts of employment with Llanelli and Bath Rugby Union Clubs   required him to train and maintain a high level of physical fitness. In the case of his contract with Bath Rugby Union Club the Appellant could be summarily dismissed for not maintaining a high level of fitness. He could only do this by consuming large quantities of calories in accordance with a programme designed, to ensure he was at peak fitness and strength on match days.  The Appellant’s taking of additional food and nutrients was part of his preparation for competitive games and carried out in the performance of his duties. In this respect  the  Appellant relied on a passage in  the decision in Humbles (HM Inspector of Taxes) v Brooks (1962) 40 TC 222  where Mr Justice Ungoed-Thomas stated at page 503:
“The Revenue contended that the taxpayer was not employed to prepare lectures but to deliver them. This, to my mind, is an unreal distinction for present purposes. I cannot recognise that a person who is employed to deliver lectures or to teach is not, when preparing the lectures or the talks which he gives, doing what he is employed to do – that he is not acting in the course of the performance of his duties. Preparing lectures is, to my mind, a necessary part of his duties”.
22.	The Appellant restricted his claim for relief to the cost of food and nutritional supplements over and above what was required in the diet of an average active male. He incurred this additional expenditure exclusively for the purpose of maintaining his fitness levels as a professional rugby union prop forward.  He did not buy the additional food and supplements for the pleasure of eating. In the Appellant’s view the consumption of the additional calories necessary to maintain his fitness would be harmful to the health of an average active male not engaged in the playing of professional rugby. Finally, the Appellant submitted that all professional rugby union prop forwards incurred expenditure on additional food, nutritional supplements and medicines to achieve the required level of fitness. Thus the expenditure was necessarily incurred because it applied to all holders of the employed position of rugby union prop forward. 
23.	The Respondents contested the Appellant’s interpretation and application of the law relating to deductible expenses to the facts of this case. They considered that the facts of this Appeal were indistinguishable from  the High Court decision in Ansell v Brown (2001) 73 TC 338, which also involved a claim for relief for expenditure incurred on  additional food and nutritional supplements by a professional rugby union player.  Under his contract of employment Mr Brown was obliged to maintain a high standard of fitness, and obey all reasonable directions of his employers relating to training, fitness and diet.  Mr Justice Lightman in allowing the Appeal by the Respondents decided that
“It is plain that the expenditure on the supplements was incurred for the purpose of achieving and maintaining the required level of fitness and the required size and physique for a back row forward. But for the reasons given and in accordance with the authorities which I have cited that does not constitute an expenditure in the performance of his duties as an employee of the club.  In particular it was an expenditure incurred to enable him to perform his duties, and not in the performance itself; and further it was an expenditure the need for which arose from his own personal circumstances, namely his need to increase his weight by reason of his underweight and desire to increase it”.
24.	The Respondents, therefore, submitted that the Appellant’s expenditure on additional food, supplements and medicines was incurred to enable him to perform his duties as a rugby union prop forward as distinct from expenses incurred in the performance of duties.  
25.	The Respondents also considered that the facts of the Appeal did not satisfy the exclusivity and necessarily hurdles for expenditure relief. In the Respondents’ view the Appellant derived benefits from his consumption of additional food and supplements which went beyond ensuring the performance of his duties as a prop forward. The contents of the Rugby Football Union Guide for Coaches demonstrated that the Appellant enjoyed significant health benefits from following the balanced diet recommended for professional rugby union players. In short the Appellant’s attempt to apportion his food expenditure between the necessity of living and playing rugby union football was wholly unrealistic and not supported by the facts. 
26.	The Respondents pointed out that the necessarily hurdle in section 198 of ICTA 1988 required the Appellant to demonstrate that his duties as a prop forward could not be carried out without incurring the expenses. The hurdle was strictly construed and determined by objective criteria. The facts showed that the Appellant chose to consume additional food and nutritional supplements to maintain the required fitness levels. Further other rugby union prop forwards did not share with the Appellant the same requirement for additional food and supplements because their needs were dependent upon their individual physical characteristics. Thus the Appellant’s taking of additional food and supplements was due to his personal circumstances and not necessarily in the performance of his duties.
27.	The Appellant’s representative considered that the facts of this Appeal were distinguishable from Ansell v Brown. According to the representative, Mr Brown was a part-time professional ruby union player attached to a junior club whose fitness standards were lower than that of Bath and Llanelli. Mr Brown was a back row forward not a prop forward as was the case with the Appellant.  Mr Brown was naturally half a stone too light and took the additional food and supplements to increase his weight. The Appellant, on the other hand, was of optimum physical size and build and consumed the additional food and supplements to maintain his fitness. Finally Mr Brown used Creatine as one of his nutritional supplements which was different from Mylopex, with the purpose of promoting growth.
28.	I was not persuaded by the Appellant’s representative’s attempt to distinguish the facts of Ansell v Brown from the facts of this Appeal. I find that the differences relied upon by the representative were not material to the decision in Ansell v Brown.  The judgment in Ansell v Brown was based on the finding of fact that the expenditure on additional food and nutritional supplements was incurred for the purpose of maintaining the required level of fitness. Mr Brown had virtually the same clause in his contract of employment with respect to maintaining a level of fitness set by the club as was in the Appellant’s contract of employment. The Appellant’s case depended upon the supposed interrelationship between the consumption of additional food and nutritional supplements and the term of his contract dealing with physical fitness.  In my view the central argument deployed by the Appellant was on all fours with the argument advanced by Mr Brown. In that respect I find that I am bound by the decision of Mr Justice Lightman that the expenditure on additional food and nutritional supplements was incurred by the Appellant to enable him to perform his duties, and not in the performance itself.
29.	The Appellant emphasised that unlike Mr Brown he did not require the additional food and nutritional supplements to promote growth. The Appellant had already attained a high level of fitness in terms of body mass and strength before he was employed by Bath and Llanelli rugby union football clubs. He was taking the additional food and supplements to maintain his level of fitness. This aspect of the facts in Ansell v Brown was dealt with by the second and separate limb of Mr Justice Lightman’s decision, namely, “it  was an expenditure the need for which arose from his own personal circumstances, namely his need to increase his weight by reason of his underweight and desire to increase it”.  The existence of a second and separate limb to Mr Justice Lightman’s decision did not detract from his principal finding that the expenditure on the food and supplements was not incurred in the performance of Mr Brown’s duties of employment.
30.	Regardless of whether I am bound by the High Court decision in Ansell v Brown, I find on the facts of this case that the Appellant’s expenditure on additional food, nutritional supplements and medicines was not incurred exclusively and necessarily in the performance of his duties as a professional rugby union prop forward.
31.	I find the following facts:
(1)	The Appellant’s contracts of employment with Bath and Llanelli Rugby Union Football Clubs required him to maintain a level of fitness as required by his employers. Failure to meet this term of his contract of employment could result in a financial penalty (Llanelli) or instant dismissal (Bath).
(2)	The Appellant’s contracts of employment with either Bath or Llanelli Rugby Union Football Clubs did not specify the method by which the Appellant would maintain his fitness. Further the contracts did not require the Appellant to incur expenses in respect of additional food, nutritional supplements and medicines.
(3)	The Appellant decided as part of his fitness regime to incur expenditure on additional food, nutritional supplements and medicines. 
(4)	The items purchased by the Appellant were available for sale to the general public. 
(5)	The type of food bought by the Appellant was that found in a balanced diet. The principal difference between the Appellant and a reasonably active male following a balanced diet was that he consumed greater quantities of food to achieve the required number of calories.
(6)	  The Appellant’s expenditure on additional food and nutritional supplements was governed by the requirements of a balanced diet. The Appellant derived significant health benefits from following a balanced diet which went beyond ensuring the required level of fitness for his duties as a prop forward.
(7)	The Appellant likewise gained enduring health benefits from his use of Glucosamine and Omega 3 oils which lubricated and protected his joints not only for playing rugby but also for his overall mobility.
32.	  It was common ground between the parties that the provisions of section 198 ICTA 1988 were notoriously rigid, narrow and to some extent unfair in its operations. However, as stated by Lord Templeman in Fitzpatrick v CIR (1994) 66 TC 407 at 525:
 “The reasons for the strictness of the rule governing deductible expenses are not hard to find. If a journalist or other employee were allowed to deduct expenses incurred by him in his spare time in improving his usefulness to his employer, the imposition of income tax would be distorted and the amount of expenses claimed by an individual would depend entirely on his own choice”. 
33.	The Appellant must satisfy four requirements to be eligible for relief under section 198 which are that the expenses in question were incurred in the performance of the duties of his employment, and they were necessarily, wholly and exclusively so incurred. The parties agreed that the requirement of wholly was not in dispute as it went to quantum.
34.	 Under the first requirement in the performance of the duties of his employment the Appellant had to demonstrate that the duties themselves obliged him to incur the disputed expenditure and the act giving rise to the expenditure was done in the actual performance of such duties.  An act which was done merely to acquire the necessary qualifications or the background knowledge necessary to do the job or to do it better was not sufficient. This principle was explained in the High Court decisions of Simpson (HM Inspector of Taxes) v Tate [1925] 2KB 214 and Humbles v Brooks, cited above. In  Simpson which involved a County Medical Officer’s claim to deduct subscriptions to certain professional societies Mr Justice Rowlatt said at page 218:
“This gentleman of course qualified in one sense before he got his appointment, but he is continually keeping himself qualified very properly and rightly by keeping himself abreast of all the highest developments and knowledge of the day. But when one looks at it closely one sees that that is not in the performance of duties. He does not belong to societies in order that he may get journals and read them to patients. It is absurd to suggest anything of that sort but if he did that would be quite different. He is qualifying himself in order that he may continue to hold his office, just as he did qualify himself, before he got the office, to enable him to perform it”.
35.	Humbles v Brooks concerned a claim by a headmaster for expenses of attending a series of weekend lectures for the purpose of improving his background knowledge in history which he was required to teach. Mr Justice Ungoed -Thomas in finding against the taxpayer stated:
“Further there is, in my view, a distinction between qualifying to teach and getting background material – and even getting information and material which he reproduced in his own lecture on the one hand, and preparing his own lecture for delivery on the other hand. The statement, in the passages in the Case stated, that the lectures at the college provided the Respondent with material which he reproduced gets nearest to the performance of his duties within the section, but even if this element could be treated in isolation, it goes no further than providing material – just as any background information would provide material – and is not, of itself, part of the preparation of his own lecture. It is to my mind qualifying for lecturing, or putting himself in a position to prepare a lecture. It is not the preparation of a lecture. In this sense, the distinction is between preparation for lecturing on the one hand and the preparation of a lecture on the other hand”.
36.	On the facts found the Appellant was not required by his contract or his employers to expend money on additional food, nutritional supplements and medicines in order to maintain the required level of fitness. In short the duties of the Appellant’s job required him to maintain levels of fitness but did not oblige him to eat and take medicines which were the acts giving rise to the expenditure in question. 
37.	The Appellant relied on the decision in Humbles for his proposition that the consumption of food and the taking of medicines was part of his fitness preparation for playing rugby and so constituted a duty of his employment as a rugby union prop forward. I consider that the Appellant has stretched the facts of the case to support his proposition which was based on confusing the two uses of the word preparation as applied in Humbles. Essentially Mr Justice Ungoed –Thomas distinguished between acts which were done in preparation of and those in preparation for a lecture. The facts of the Appeal supported a construction that the Appellant was taking the additional food, nutritional supplements and medicines to prepare him for his duties as a prop forward, not in preparation of or as part of his duties.  His expenditure on the items put himself in the position to carry out his job competently and enabled him to perform better as a prop forward. I agree with the Respondents’ submission that the expenditure was one step removed from the performance of his employment duties. Thus I find that the Appellant’s expenditure on additional food, nutritional supplements was not incurred in the performance of his duties of employment as a rugby union prop forward.
38.	 The second requirement of necessarily incurred is determined objectively. All holders of the particular employment must incur the expense (Ricketts v Colquhoun (1926) 10 TC 118). The duties of employment cannot be performed without incurring the expense (Brown v Bullock (1961) 40 TC 1). The expenditure is not incurred voluntarily, or wholly or mainly by reason of his own personal circumstances (Ansell v Brown).
39.	The Appellant relied on his evidence and that of Messrs Murray and Hopley that all professional rugby union prop forwards incurred expenditure on additional food, nutritional supplements and medicines to substantiate the requirement of necessarily incurred. However, the Appellant accepted in cross-examination that the actual expenditure incurred and the items purchased would vary between individual prop forwards who would determine their own needs dependent upon their personal circumstances. The Appellant chose to consume additional food and nutritional supplements and the taking of medicines. His employers did not compel him to incur the expenditure. I, therefore, find that the disputed expenditure was not necessarily incurred in the performance of his duties.
40.	The third requirement of exclusively incurred is met if the Appellant can show that the disputed expenditure was solely attributable to the performance of his duties and any other purpose secured from the expenditure was merely incidental. In this respect the Appellant faced a major hurdle as prima facie the items purchased were those that were necessary to sustain a healthy life. As  Lord Greene MR in Norton v Golder (1944) 26 TC 293 put it at 297:
“The same thing applies to the food you eat and the clothes that you wear. But expenses of that kind 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”.
41.	The Appellant submitted that he was not claiming the cost of food to maintain life but instead deducting the expenditure on the additional food necessary to maintain his fitness levels as a prop forward. Further the amount of extra food consumed would be positively harmful to the health of a person who was not a professional rugby union player. The medicines purchased protected his body from the ravages of his employment. 
42.	The facts found, however, painted a different picture from that presented by the Appellant.  The expenditure incurred on additional food, nutritional supplements and medicines was governed by the requirements of a balanced diet and healthy living which secured enduring health benefits for the Appellant as well as enabling him to perform his employment duties. I find that there was a duality of purpose for the purchases, and, therefore, the expenditure on additional food, nutritional supplements and medicines was not incurred exclusively for the performance of his duties of employment. 
Decision
43.	I find that the Appellant’s expenditure on additional food, nutritional supplements and medicines for the relevant tax years was not incurred exclusively and necessarily in the performance of his duties of employment. I, therefore dismiss the Appeal.

                                

                                 MICHAEL TILDESLEY OBE
CHAIRMAN
RELEASE DATE: 14 February 2008

LON/