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Dual purpose expenditure – can landlords claim a deduction?

Adrian Mooy - Tuesday, December 17, 2019

Landlords are able to claim tax relief for expenses that are incurred wholly and exclusively for the purposes of the property rental business. However, some expenses have both a private and a business element. Where this is the case, is any relief available?

Business element separately identifiable

If it is possible to separate the business and the private expenditure, a deduction can be claimed for the business element. This may be the case, for example, in relation to a car which is used for both private journeys and for the purposes of the property rental business, to visit tenants or to check on the properties. Likewise, a landlord may use his or her mobile phone for private calls and also for business calls. From the call log, it will be possible to identify the business calls and to apportion the bill between business and private calls.

Business element cannot be separately identified

If the expenditure is dual purpose in nature and it is not possible to identify the business element, no deduction is allowed. The expenditure does not meet the ‘wholly and exclusively’ test, and as such is not deductible in computing the profits of the property rental business. An example of expenditure that may fall into this category is clothing, even if only worn for working in the property rental business. The clothing fails the wholly and exclusively test as it also provides the landlord with warmth and decency (a private purpose). However, it should be noted that a deduction is allowed for clothing that bears a conspicuous advert for the business, such as a sweatshirt featuring the name of the property rental business and the logo.

Example

Dave is a landlord and has a number of properties that he rents out to students. He uses the same car for the purposes of the property rental business as for private journeys.

Dave undertakes the decorating and much of the maintenance on the properties himself. He has purchased overalls specifically for this purpose, which he wears only when undertaking work on the let properties. In the tax year, he spends £80 on overalls.

In the tax year in question, Dave drove 6,800 miles of which 4,200 were for the purposes of his property rental business.

A deduction is allowed for the business mileage. Dave uses the simplified mileage system, claiming a deduction of £1,890 (4,200 miles @ 45p per mile).

However, although he only wears the overalls when working on his let properties, the private benefit cannot be distinguished from the business use. Consequently, the ‘wholly and exclusively’ test is not met, and the £80 which Dave spent on overalls cannot be deducted in computing the taxable profit for his property rental business.

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Can Airbnb lets qualify as furnished holiday lets?

Adrian Mooy - Monday, December 16, 2019

Many Airbnb lets are used as holiday accommodation. From a tax perspective, furnished holiday lettings enjoy some tax advantages over other lets. So, is it possible for an Airbnb let to benefit from these advantages and what conditions must be met?

Qualifying conditions

Simply letting a property as furnished holiday accommodation is not in itself sufficient to qualify for the furnished holiday letting (FHL) treatment. As with other lets, Airbnb lets must meet the conditions set out in the legislation.

The first point to note is that the FHL treatment is only available to properties which are in the UK or the EEA and which are let furnished. Occupancy conditions There are three occupancy conditions which must be met for a property to be treated as FHL.

Condition 1 – the pattern of occupancy condition The pattern of occupancy condition is met if the total of all lettings in the tax year exceeding 31 days is 155 days or less. The nature of holiday letting is multiple short lets rather than longer lets and this condition seeks to recognise this.

Condition 2 – the availability condition To meet this condition the accommodation must be available for letting for at least 210 days in the tax year. Days where the owner stays in the property do not count as days when the property is available for letting.

Condition 3 – the letting condition The letting condition is met if the property is let commercially as furnished accommodation to the public for at least 105 days in the tax year. Only commercial lets count towards this total – any days when the property is let to family or friends at a reduced rate or where they are allowed to use the property for free are ignored.

Longer term lets of more than 31 days are also ignored (unless a let which was supposed to be less than 31 days is extended due to unforeseen circumstances, such as a delayed flight or the holidaymaker becoming ill).

Averaging election

If a person has more than one property let as holiday accommodation (whether via Airbnb or similar or otherwise), an averaging election can be made where the letting condition of 105 days is not met. As long as the average let across all properties is at least 105 days in the tax year, the condition is treated as met. Thus, if a person has three holiday properties which were let commercially for periods of 31 days or less for at least 315 (3 x 105) days in the year, the average let would pass the test.

Period of grace election

A second election, a period of grace election, can be made if the landlord genuinely intended to meet the letting condition but was unable to do so, as long as the condition was met in the previous tax year. This will allow the property to continue to be treated as a FHL. If the condition is not met the following year, a second period of grace election can be made. However, if the condition is not met in the fourth year after two consecutive period of grace elections, the property will no longer qualify as a FHL.

Advantages Qualifying as a FHL offers a number of advantages. It opens the door to various capital gains tax reliefs for traders, including entrepreneurs’ relief. The landlord is also eligible to claim plant and machinery capital allowances if the cash basis is not used. Profits also count as earnings for pension purposes.

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Dealing with finance costs correctly

Adrian Mooy - Friday, December 13, 2019

The self-assessment deadline is looming. Self-assessment tax returns for the year to 5 April 2019 must be filed online by 31 January 2020 if a late filing penalty is to be avoided.

Landlords will need to complete the property income pages. Particular care should be taken where the landlord has a loan or a mortgage as the way in which relief is given for financing costs is changing and the position for 2018/19 is different to that for 2017/18.

The way in which relief for finance costs is given is moving from relief by deducting the finance costs when computing profits to giving relief in the form of a basic rate tax reduction. The 2018/19 tax year is a transitional year.

What costs are eligible for relief?

Interest payable on loans to buy land or property which is used in the rental business is eligible for relief, as is interest on loans to fund improvements or repairs. It should be noted that it is not necessary for the loan to be secured on the let property – the rule is that interest is allowable on borrowings up to the value of the property when first let. Thus, if a landlord borrowed against their main home to fund a buy-to-let investment property, the interest on that loan would be allowable on the loan up to the value when the property was first let. If the mortgage on the residential property is more, the allowable interest is proportionately reduced.

Relief is also available for the costs of getting a loan.

It should be noted that it is only the interest and other finance costs which qualifies for relief – no relief is available for any capital repayments which may be made.

The position for 2018/19

For 2018/19, relief for 50% of eligible finance costs is given as a deduction in computing the profits of the property rental business and relief for the remaining 50% is given as a basic rate tax reduction. This makes completing the property pages of the tax return slightly tricky as the information must go in two places.

The first box which needs to be completed is Box 26. This is where allowable loan interest and other financial costs need to be entered. Amounts entered in this box are deducted in computing rental profits. Therefore, as only 50% of the allowable finance costs for 2018/19 are relieved in this way, only 50% of the costs for that year should be entered in this box.

The remaining 50% is entered in Box 44, helpfully titled ‘Residential finance costs not included in box 26’. The amount entered in this box is used to calculate a reduction in the landlord’s tax bill. The reduction is equal to 20% (the basic rate of income tax) of the amount entered in Box 44.

If you have any unrelieved finance costs from earlier years, these should be entered in Box 45. Any balance of residential finance costs which is unrelieved may be carried forward to future years for relief by the same property business.

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Should an LLP partner be treated as a salaried partner?

Adrian Mooy - Wednesday, December 11, 2019

As a general rule, the individual partners in a partnership are treated as self-employed for tax purposes. Consequently, they pay tax under the self-assessment system and pay Class 2 and Class 4 National Insurance contributions on their profits.

However, in a limited liability partnership (LLP), some of the partners are more like employees in nature than partners in a traditional partnership. In recognition of this, legislation was introduced to treat such partners as employees rather than as self-employed partners, with the upshot that they are taxed on their partnership earnings (‘salary’) under PAYE rather than under self-assessment, and they pay Class 1 National Insurance rather than Classes 2 A and 4.

The rules

The salaried partner treatment only applies if all of the following three conditions are met.

Condition A is met if the partner receives a reward that is more like a salary than a share of business profits.

An amount falls within this condition if:

• it is fixed;

• it is variable but without reference to the overall amount of the profits of the LLP; or

• it is not, in practice, affected by the overall profits and losses of the LLP

However, it should be noted that payments made on account of a profit share are not treated as disguised salary and the payments are contingent on future profits being made.

Condition B is met if the mutual rights and duties of the members of the LLP and the rights and duties of the LLP and its members do not give the individual significant influence over the affairs of the LLP. This condition seeks to identify partners who do not have significant influence – in a traditional partnership, the partners are in business together and have an influence on how business is done and the decisions made. A partner who is more like an employee will lack that degree of influence.

A partner will, however, be regarded as having significant influence if they are involved in the day-to-day management. Partners acting in a senior management role who may leave the day-to-day running to others but who can exert significant influence over the strategic decision of the business will also be regarded as having significant control.

Condition C is met if the individual’s capital contribution is less than 25% of the disguised salary which it is reasonable to expect will be received by the partner in return for the services that they perform for the LLP. New partners are allowed two months in which to contribute the capital.

Implications

Where all of the above conditions are met by a partner of an LLP, the partner must be treated like an employee for tax and National Insurance purposes. Payments treated as salary are taxed under PAYE and the employee must pay Class 1 National Insurance contributions. The LLP must also pay secondary Class 1 National Insurance.

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Gift cards and the trivial benefits exemption

Adrian Mooy - Tuesday, December 10, 2019

The trivial benefits exemption allows employers to ignore benefits in kind that cost £50 or less for tax purposes, as long as the conditions of the exemption are met. Where the exemption applies the benefit does not need to be reported to HMRC.

Staying within the scope of the exemption is perhaps easier said than done.

To qualify, the benefit must not be provided as a reward for services. This means, for example, giving an employee a bunch of flowers as a thank you for staying late to meet a deadline will not fall within the scope of the exemption, even if the flowers cost the employer £50 or less.

Further, the exemption only applies to benefits in kind – cash or vouchers which are exchangeable for cash do not qualify. The exemption is also lost if provision is made via a salary sacrifice scheme.

Unless the employee is a director of a close company, there is no limit on the number of tax-free trivial benefits that can be provided in a tax year; close company directors are subject to an annual cap of £300.

The problem with gift cards

HMRC have recently drawn attention to a potential problem that may arise where an employer uses a gift card to provide an employee with trivial benefits. It is easy to see how an employer who tops up a gift card several times a year would be confident that the trivial benefits exemption applies, provided that each top up is less than £50 and the other conditions are met.

However, rather than considering each top-up in isolation, HMRC’s approach is to treat the gift card as a single benefit and look at the total amount put on the gift card in the tax year – if this is more than £50, their view is that the trivial benefits exemption does not apply.

Example

An employer is keen to make use of the trivial benefits exemption to provide employees with tax free benefits. The employer provides each employee with a gift card at the start of the tax year with a balance of £30. The employer then tops up the gift card by £30 each month. The gift card can only be used for purchases; it is not exchangeable for cash.

As each top up is less than £30, the employer thinks that the trivial benefits exemption is in point and does not report the benefit to HMRC.

However, from HMRC’s perspective, the employer has provided employees with a benefit that cost £360 for the tax year – as this is more than £50 the trivial benefits exemption does not apply.

The solution

Employers should avoid topping up gift cards – this trap can be avoided by providing employees with a separate gift card each month. Changing the nature of the gift card each time further supports the view that each benefit stands alone.

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Annual investment allowance or writing down allowance?

Adrian Mooy - Monday, December 09, 2019

The way in which relief for capital expenditure is given depends on the way in which the accounts are prepared. For companies, and for sole traders and partnerships not eligible to use the cash basis, accounts must be prepared using the traditional accruals basis.

Under the accruals basis, a deduction is not permitted for capital expenditure when computing profits; instead relief is given in the form of capital allowances. By contrast, where accounts are prepared using the cash basis, capital expenditure can be deducted in computing profits unless the expenditure is of a type for which a deduction is expressly denied, as is the case for expenditure on land, buildings and cars.

AIA v WDA

There are two main types of capital allowance available for expenditure on plant and machinery – the annual investment allowance and writing down allowances. The annual investment allowance (AIA) gives an immediate deduction against profits, whereas the writing down allowance (WDA) provides a deduction over a number of years (the tax equivalent of depreciation).

Nature of the AIA

The annual investment allowance allows a business to deduct the full cost of an item when calculating taxable profits, as long as the available annual investment allowance is sufficient and the expenditure is qualifying expenditure.

It can be claimed on most items of plant and machinery, but is not available in respect of cars.

The AIA limit is set at £1 million from 1 January 2019 to 31 December 2020. It is due to revert to the normal level of £200,000 from 1 January 2021.

Where the accounting period falls wholly within the period from 1 January 2019 to 31 December 2020, the AIA limit is £1 million; where it spans either of these dates, transitional rules apply to determine the limit – check your limit for these periods with your accountant.

Nature of WDAs

Writing down allowances may be claimed where the AIA is not available, either because the limit has been used up or because the expenditure is of a type, such as that on cars, which does not qualify for the AIA. There are different rates of writing down allowance.

Items in the main rate pool attract a writing down allowance of 18%. The allowance is calculated on a reducing balance basis. Items are allocated to the main pool unless they are of a type that must be allocated to a single rate pool or they are in a single asset pool. Cars with CO2 emissions of more 130g/km or more, features integral to a building, long life assets or thermal insulation are allocated to the special rate pool, which has a lower rate of writing down allowance of 6%. Some assets, such as new cars with CO2 emissions of 50g/km or less qualify for 100% first year allowances.

AIA or WDA – which is better

Although the AIA provides immediate relief for expenditure, claiming the AIA will not always be the best option. If the trader is only planning to keep the asset for a short time, claiming the AIA now may trigger a large balancing charge on disposal – this may be something that the business wishes to avoid.

It may also be preferable to claim a writing down allowance where claiming the AIA would result in the personal allowance being wasted or create a loss.

There is no one size fits all – discuss the best option for your business with your accountant. Remember you can tailor the claim; it is not mandatory to claim the AIA on the full amount of the expenditure. However, the AIA can only be claimed in the period in which the expenditure is incurred. After that, any balance must be relieved by claiming WDAs.

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Mileage allowance payments – what is NIC-free

Adrian Mooy - Sunday, December 08, 2019

Employees frequently use their cars for work and may be paid a mileage allowance by their employer for doing so.

Employers are generally familiar with the rates that can be paid tax-free; however, it is easy to assume (wrongly as it happens) that the same rules apply for National Insurance purposes. While it is true that mileage allowances can be paid NIC-free up to certain limits, there are differences in the rules.

Recap – The tax rules

Under the approved mileage allowance scheme, as long as employers do not pay a mileage allowance for business travel that is more than the ‘approved amount’, the allowance can be paid tax-free and does not need to be reported to HMRC. The approved amount is simply the number of business miles in the tax year multiplied by the relevant approved mileage rate. The rate for cars and vans is 45p per mile for the first 10,000 reimbursed business miles in the tax year and 25p per mile for any subsequent business miles.

If the amount paid exceeds the approved amount, the excess is taxable and must be reported on the employee’s P11D. By contrast, if the allowances paid by the employer are less than the approved amount, the employee can claim tax relief for the shortfall.

NIC rules

Unlike PAYE, NIC does not work on a cumulative basis – in determining the NIC liability for a particular earnings period, only the earnings for that period are taken into account. As a result of the non-cumulative nature of NICs, when looking at mileage payments, only those paid in the particular earnings period are relevant – it is not necessary to look at the position for the whole year. A consequence of this is that the 45p per mile rate for cars and vans applies for NIC purposes to all reimbursed business miles in the tax year, not just the first 10,000.

The terminology for National Insurance purposes is different too – rather than the ‘approved amount’ the relevant amount is the ‘qualifying amount’ (QA). As long as the mileage payments paid in the earnings period are not more than the qualifying amount, they are NIC-free.

The qualifying amount is found by the formula M x R where M is the number of business miles for which payment is being made and R is rate applicable to the vehicle at time that the payments were made. The rates are as follows:

• 45p per mile for cars and vans

• 24p per mile for motorcycles

If the mileage payments in the period (referred to as ‘relevant motoring expenditure’ (RME)) exceeds the qualifying amount, the excess is earnings for NIC purposes (but not for PAYE). Consequently, this excess is included in gross pay for NIC purposes but not for PAYE purposes – any excess over the approved amount for tax purposes is reported on the P11D.

Example

Michelle uses her car for work. She is paid monthly. In one particular month she drives 750 business miles. Her employer pays a mileage allowance of 50p per mile.

The mileage payments made to Michelle in the month are therefore £375 (750 miles @ 50p per mile) and the qualifying amount is £337.50 (750 miles @ 45p per mile). As the payments (RME) exceed the qualifying amount (QA), the excess of £37.50 (£375 - £337.50) is treated as earnings and included in gross pay for NIC purposes.

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Relief for trading losses

Adrian Mooy - Saturday, December 07, 2019

In the event that a loss arises in a trade or profession, consideration should be given as how best to obtain relief for that loss. As with many things, there is no ‘one size fits all’ and the best option will depend on the trader’s particular circumstances.

Option 1 – Relief against general income If the trader has other income, one of the easiest (and quickest) ways to obtain relief for the loss is to set against general income.

However, this option is only available where accounts are prepared using the traditional accruals basis; traders using the cash basis cannot relieve a trading loss in this way.

A claim can be made to relieve the loss against:

• Income of the same tax year;

• Income of the previous tax year;

• Income of both the current and the previous tax years.

If the trader wishes to relieve the loss against the income of the current and the previous tax year, they must choose which year has priority. The income of the priority year must be completely extinguished before the balance of the loss can be set against the other year; it is not possible to make a partial the claim and tailor the relief, for example, to preserve personal allowances. If the individual does not have sufficient income in the current or previous tax year, but has a capital gain, the relief can be set extended to capital gains (net of capital losses but before the annual exempt amount). When choosing whether to relieve the loss in this way, consideration should be given to preserving personal allowances. If other income in the year is sheltered by personal allowances, there is little benefit in making a claim against general income.

Option 2 – Against later profits of the same trade A loss arising in a trade or profession can be carried forward and set against future profits of the same trade. However, the loss must be set against the first tax year in which a profit arises – again it is not possible to tailor claims to preserve personal allowances. If the loss is not fully utilised against the first year in which a profit arises, the unused balance must be set against the next tax year in which a profit arises.

Option 3 – Relieving an early year loss If the trade is relatively new, the trader may be able to benefit from a special relief that applies to losses made in the early years of the trade. Under this relief, a loss that is made in the year that the trader starts to trade or any of the three subsequent years (i.e. the first four years of the trade) can be carried back and set against total income of the three years before the tax year in which the loss was made, with earlier years taken in priority to later years. This option is not available where accounts are prepared using the cash basis.

Option 4 – Terminal loss relief In the event that a loss is made in the final 12 months of trading, relief can be claimed under the terminal loss relief provisions against the profits from the same trade taxed in the four years to cessation. Which option? The best option will depend on the trader’s personal circumstances. Consideration should, however, be given to preserving personal allowances, obtaining relief at the highest possible rate and obtaining relief as early as possible.

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Can my company buy me a new bicycle?

Adrian Mooy - Thursday, December 05, 2019

The government introduced ‘cycle to work’ back in 1999. Broadly, this is an annual tax exemption that allows a business to loan bicycles and cycle safety equipment to employees as a tax-free benefit. This tax break has had a positive impact on workplace health and employee motivation and has encouraged new groups of people to take up physical activity. But can it work for small companies?

The ‘cycle-to-work’ tax breaks apply equally to directors of one-person limited companies as they do to regular employees of large businesses. This means that the company (the employer) can buy a bike and bike safety equipment and loan it to the director (the employee) for qualifying business journeys. There is no requirement for a formal agreement to be drawn up and no need for prior approval by HMRC.

The company can purchase the bike directly and reclaim VAT, where relevant, on the purchase price. For corporation tax purposes, a deduction may be claimed on the full cost of the bike using the capital allowances annual investment allowance (AIA).

The company can also provide any safety equipment for the cyclist i.e. helmets, high visibility jackets, cycle clips, and so on, and these will be treated as revenue expenditure, eligible for corporation tax relief.

There are a couple of conditions to be met in order to qualify for the deductions:

• ownership of the bike is not transferred to the employee during the loan period – so the bike remains owned by the company; and

• the equipment is used mainly for qualifying journeys. Broadly this means at least 50% business use - i.e. for journeys made between home and the workplace, or part of those journeys (for example, to the station), travel to clients or for journeys between one workplace and another.

Note that travel to work can include a permanent workplace, so the definition of what qualifies as a work journey for providing tax-free bicycles is wider than the normal travel rules.

For the director/employee, there will be no taxable benefit-in-kind arising from the use of the bike and there doesn’t need to be a reduction in salary to offset the cost of the bike. Therefore, the director’s salary summary will remain unaffected.

The director potentially saves on income tax, because the bike is being funded with gross fee income and not personal income. This could save between 20% - 25%, in comparison with the bike being purchased personally, depending on the director’s earnings.

If the bike is transferred into the director’s personal ownership at a future date a taxable benefit charge will arise based on the market value of the bike at that date. This contrasts slightly with the normal rule that specifies that a taxable benefit charge arises in the value of the bike at the time it was first provided to the employee. Where the bike is transferred, the company will pay corporation tax on the market price, but the director will have potentially gained significant tax relief on the bike’s purchase.

Note that the company owns the bike, the cost of any repairs will remain a cost to the company.

Mileage allowances

Along similar lines to claiming mileage for using a private motor vehicle for business journeys, it is also possible to claim mileage for bikes owned personally and used for journeys to and from a temporary workplace. HMRC allow cyclists to claim 20p per mile for business journeys.

On average, a person who cycles an additional five miles to work and back each week will burn up around 4,500 extra calories and reduce their carbon footprint by around 45kg CO2. With such positive health benefits to be gained, coupled with the current generous tax breaks on offer, swapping car journeys for pedal-power should be well worth considering.

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Help employees beat the post-Christmas bulge

Adrian Mooy - Wednesday, December 04, 2019

Promoting employee health and wellbeing is increasingly seen as a vital part of a successful business. According to government figures, in 2016/17, 1.3 million workers suffered from work-related ill-health, which equated to 25.7 million working days lost. This has been estimated to cost £522 per employee, and up to £32 billion per year for UK business. There are several areas where employers can use tax breaks and exemptions to help promote health and fitness at work.

Sporting facilities

Larger organisations are often able to offer gym or leisure facilities for staff in the workplace (or at a location convenient to work) run either by the organisation directly, or by a third-party provider. The facilities can be offered to employees to access for free or on a paid-for basis.

In-house gym facilities may be provided tax and NIC free if the following conditions are satisfied:

• the facilities must be available for use by all employees, but not to the general public;

• they must be used mainly by employees, former employees or members of employees’ families and households (employees of any companies grouped together with to provide the facilities also count);

• the facilities must not be located in a private home, holiday or other overnight accommodation (including any associated sporting facilities); and

• they must not involve use of a mechanically propelled vehicle (including road vehicles, boats and aircraft).

Where an employer is unable to provide in-house gym facilities, it may be possible to negotiate favourable membership rates with a local gym or leisure centre. Whilst this may lead to a tax liability for employees, the preferential rate can often be up to 20% - 30% cheaper than the normal price, so this is still an attractive offer for employees. Depending on how the cost of the gym membership is funded, the fees will either be taxed as earnings or as a taxable benefit-in-kind. So, for example, if an employer gives the employee additional salary to pay for their gym membership, the money is taxed as earnings through PAYE. If the employer pays the gym membership direct, a taxable benefit-in-kind arises on the employee and should be reported to HMRC on form P11D

Tax-breaks to promote good health

It’s a well-established fact that a healthier workforce is a more productive workforce. The government recognises these benefits too and has introduced several tax breaks to promote good health.

A tax and NIC-free exemption allows employers to fund one health-screening assessment and/or one medical check-up per year per employee. Subject to an annual cap of £500 per employee, employer expenditure on medical treatments recommended by employer-arranged occupational health services may be exempt for tax and employee NICs. ‘Medical treatment’ means all procedures for diagnosing or treating any physical or mental illness, infirmity or defect. Broadly, in order for the exemption to apply, the employee must have either:

• been assessed by a health care professional as unfit for work (or will be unfit for work) because of injury or ill health for at least 28 consecutive days;

• been absent from work because of injury or ill health for at least 28 consecutive days.

Employer-funded eye, eyesight test, and ‘special corrective appliances’ (i.e. glasses or contact lenses) may also be exempt for tax and NICs, providing certain conditions are satisfied.

Fitness and health issues inevitably become more popular following several weeks of seasonal festivities and the dreaded over-indulgences. Anything an employer can do to help employees beat the post-Christmas bulge is likely to be most welcome.

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Blog

Dual purpose expenditure – can landlords claim a deduction?

Can Airbnb lets qualify as furnished holiday lets?

Dealing with finance costs correctly

Should an LLP partner be treated as a salaried partner?

Gift cards and the trivial benefits exemption

Annual investment allowance or writing down allowance?

Mileage allowance payments – what is NIC-free

Relief for trading losses

Can my company buy me a new bicycle?

Help employees beat the post-Christmas bulge

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