[2010] UKFTT 218 (TC)

TC00519

Appeal number: SC/3219/2008 

CORPORATION TAX – Trading profits – Moneys mistakenly paid to trader – Appellant supply recruitment services to customers – Customers make payments by mistake – unclaimed amounts transferred to balance sheet account and released to profit and loss account at financial year end – whether mistaken payments constitute trading receipts accruing or arising from trade for tax purposes - Yes

FIRST-TIER TRIBUNAL
TAX 

	PERTEMPS RECRUITMENT PARTNERSHIP LTD	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS (Corporation Tax)	Respondents

		TRIBUNAL: 	NICHOLAS ALEKSANDER (TRIBUNAL JUDGE)					PHILIP GILLETT				

Sitting in public at 45 Bedford Square, London WC1 on 18 and 19 March 2010

Jonathan Schwartz, counsel, instructed by Grant Thornton UK LLP for the Appellant

Elizabeth Wilson, counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2010

DECISION

1.	Pertemps is a UK incorporated and resident company. The issue in the case is whether sums of money mistakenly paid by customers to the Appellant (“Pertemps”), and not repaid, were liable to corporation tax under section 18(3) Income and Corporation Taxes Act 1988 ("ICTA").  Pertemps say they are not.  The appeal is against (a) the refusal of error and mistake claims made pursuant to paragraph 51, Schedule 18, Finance Act 1998 for each of the accounting periods ended 31 December 1999, 2000, 2001 and 2002, and (b) an amendment to Pertemps' corporation tax return for the accounting period ended 31 December 2003 pursuant to paragraph 34(4), Schedule 18, Finance Act 1998.
2.	Pertemps was represented by Jonathan Schwartz, and HMRC by Elizabeth Wilson.  We had a witness statement of, and heard evidence from, Clive Hamilton, an accountant employed by Pertemps.  In addition we had bundles of documents, including a statement of facts not in dispute.
The facts
3.	The primary facts were not in dispute before us and were largely agreed.  Pertemps and HMRC have agreed that the appeal should be determined by reference to sample balances in the accounting period ended 31 December 2003 selected by HMRC during their enquiry into the subject matter of the appeal.  In our view nothing turns on the individual details of transactions.  
4.	We find the following to be the relevant primary facts.
5.	The business of Pertemps is the operation of staff agencies – namely a recruitment agency providing either temporary or permanent workers to its customers.  Where Pertemps provides a temporary worker, it pays the worker, and recharges the customer for the worker's costs plus a management fee.  Where Pertemps provides help to enable a customer to engage a permanent worker, it charges the customer a recruitment fee.  Pertemps invoices its customers in respect of these services.  
6.	Pertemps customers are split into two groups – “contract” customers and “A-Z” customers.  Contract customers enter into a contract with Pertemps for the supply of temporary and/or permanent workers.  The contracts are specific to the particular customer, and run for a period of between two and five years.  A-Z customers do not have tailored contracts, and instead engage Pertemps on its standard terms of business.  The typical length of an assignment for an A-Z customer is 12 weeks.  Relationships with A-Z customers are often “one off” and last for a short period of time.  For the year ended 31 December 2003, income from A-Z customers made up 45% of Pertemps' turnover, and income from contract customers made up 55% of turnover.
7.	Contract customers are sent a spreadsheet by e-mail each week detailing all outstanding invoices.  The customer reviews this spreadsheet and reconciles it with its own records.  The customer then either authorises payment according to the spreadsheet or disputes the amounts shown as due.  Pertemps credit control department is in very regular contact with contract customers, and if a payment is not received by the due date, the customer is immediately telephoned.  Any differences between Pertemps' records and those of the customer are reconciled and any disputes over the quality of service are referred to the relevant individual in Pertemps for action.  If a credit note is issued, it will show up on the next spreadsheet sent to the customer.  Payments are normally withheld by customers where there are amounts in dispute and these amounts are not released for payment until the matter is resolved.
8.	Most A-Z customers are billed on a weekly basis. Statements for these customers are generated each month showing outstanding invoices and any unallocated payments (statements are also provided on request). In some cases these statements are sent electronically directly to the customer.  However the majority are transmitted electronically to an outsourcing firm engaged by Pertemps.  The outsourcing firm prints out the statements and posts them to the customers.  Statements are not sent to customers if they have no net balance owing to Pertemps, namely if the balance is zero, or if there is a credit balance in favour of the customer.  In consequence if A-Z customers have made overpayments in error, there are circumstances in which Pertemps may never inform them of that fact.
9.	A-Z customers are telephoned by Pertemps' credit control department within two days of an invoice becoming overdue.  Credit notes may be issued to A-Z customers for a number of reasons, mainly disputes over amounts charged or hours worked.  Where there is a disagreement, the customer will normally withhold payment either for the full liability on the account, or for the disputed amount.  Once the disagreement is resolved (and, where appropriate a credit note issued) the customer will normally pay the amount agreed as due.
10.	Payments are received by Pertemps either by cheques in the post, or by direct credit to its bank account by BACS.  Post is received each working morning by Pertemps in its post room, and is sorted.  All cheques are passed to the sales account team.  A member of the team prepares a cheque list and the cheques are banked daily.  All payments (cheques and BACS direct credits) are made into the same single bank account.  
11.	Another member of the sales accounts team posts the receipts (cheques and BACS) to the sales ledger on Pertemps’ computerised accounting system as quickly as possible on the day of receipt. BACS receipts are reconciled either using the electronic reference used in the BACS record (which would have been provided by the customer to their bank when instructing the bank to make payment) or using the remittance advice sent separately in the post by the customer.  Cheque payments are normally accompanied by a remittance advice detailing the invoices to which the payment relates.
12.	We note, and find, that at the time when payments are received by Pertemps (either when the payment is credited directly into its bank account by BACS, or when a cheque is banked), the payment may not have been reconciled to a particular invoice as reconciliation is undertaken separately.  Unreconciled payments are not segregated into a separate account, but are mixed with other receipts.  Business expenses incurred by Pertemps are paid from the funds in this bank account.
13.	Where a payment is received without valid references or a remittance advice, Pertemps goes to considerable lengths to unite the payment with the payer.  This is a lengthy process involving searching through its accounting records and databases to match the payment to an outstanding liability. 
14.	Despite the efforts made by Pertemps to unite payments with outstanding liabilities, some payments cannot be reconciled. The majority of unreconciled payments are either offset against another liability of the customer, or are repaid.  This is illustrated in the case of one of the samples that we reviewed where part of an overpayment made by a customer was applied against an invoice rendered to one of the customer's affiliated companies.
15.	Only in a minority of cases are payments neither offset against another liability nor returned to the customer.  Every six months Pertemps reviews unreconciled balances in the sales ledger.  Those that are more than six months old are transferred to a balance sheet account. At the end of each financial year, this balance sheet account is released to Pertemps' profit and loss account as part of its year end procedures.  This accounting treatment (i) is an accounting basis which gives a “true and fair view” for the purposes of section 42(1) Finance Act 1998 (“FA 1998”) until 23 July 2002 and (ii) is in accordance with “generally accepted accounting practice” for the purposes of s42(1) FA 1998 (as amended by s 103(5) FA 2002) with effect from 24 July 2002.  In his evidence Mr Hamilton stated that these balances are released to Pertemps’ profit and loss account in order to comply with the relevant accounting standards and not because they believe the monies belong to the company.
16.	Pertemps keeps a full history of all payments received.  If a customer can show that it has made an overpayment in error, Pertemps has and will refund the overpayment, even if the payment has been transferred to a balance sheet account or has been released to the profit and loss account under the procedures described above.  
17.	In the accounting period ended 31 December 2003, Pertemps received 990 payments totalling £486,000 which were taken to the profit and loss account under these procedures.  Of these, 110 payments were from contract customers and 880 were from A-Z customers. The reason that unreconcilable payments are much less common amongst contract customers is because of the continuous customer validation processes used.  Where unidentified payments are received from a contract customer, they are shown as unallocated on the weekly spreadsheet, and the customer would normally identify and reconcile the payments when they validate the spreadsheet.  These payments are then either repaid or offset against other liabilities.  It is unusual for payments made in error by a contract customer not to be resolved within a few weeks.
18.	For the accounting periods under appeal, the turnover of Pertemps and the value of unreconciled payments were as follows:
Period Ended	Turnover
£'000	Unreconciled payments
£'000	Percentage
%	
31/12/1999	155,929	79	0.050	
31/12/2000	167,374	402	0.240	
31/12/2001	183,963	444	0.241	
31/12/2002	207,918	213	0.102	
31/12/2003	187.842	486	0.259	
TOTAL	903,026	1,624	0.180	

19.	Pertemps do not know why customers make payments in error, they can only guess.  Looking at the sample transactions, they appear to fall into three categories.  In some cases customers made payments against invoices in circumstances where the invoice had been reversed by a credit note – but the credit note was ignored.  In other cases it would appear that some customers paid invoices twice, or perhaps mistook a credit note for an invoice, and paid against both the invoice and the credit note.  There is one other case where the payment could not be linked in any way to an underlying supply.  The invoice number quoted by the customer did not correspond to any sale made to it. As we heard no evidence from Pertemps' customers, such explanations must be  speculative.  We consider that nothing turns on the precise reasons why customers made overpayments. We note that all of the sample payments were made by persons who had a customer relationship with Pertemps – either as contract customers or as A-Z customers, and that in every case the payment was made by reference to a Pertemps' invoice (real or – in one case – imagined).  It can be inferred, and we find, that each of the over payments which are the subject of this appeal were made by a customer under a mistaken belief that it owed money to Pertemps for services Pertemps had supplied to it. We therefore find that the payments derive from the business relationship that Pertemps has or had with its customers.  It is common ground, and we find, that such payments were made as a result of an error by the customers and were sums of money to which, on receipt, Pertemps were not entitled.  We find, given the scale on which Pertemps operates, that it is inevitable that mistakes will occur from time to time, and therefore that although Pertemps does not carry on any specific activity which might be said to earn or encourage these payments the receipt of mistaken payments is an unavoidable incident of Pertemps' trade.  
20.	We find that at the time when the overpayments were deposited into Pertemps' bank account, it did not know that the receipt represented an overpayment.  This is because the payments were either made electronically by the customer directly into Pertemps' bank account, or because Pertemps' deposited the cheques into its account before it had allocated the cheque to an invoice.  We also find that Pertemps treated the overpayments as its own money, notwithstanding the statements by Mr Hamilton in his evidence that they did not regard them as such. The overpayments were not segregated in any way from other receipts, and were paid into the same bank account.  Money in this bank account is used to meet Pertemps' expenses. 
21.	 We emphasise that there is no suggestion that Pertemps conducted its business so as to encourage the receipt of the overpayments. We find that in a majority of cases, overpayments are either offset against another liability of the customer or are returned.  It is only in a minority of cases that payments are not returned to the customer.  
The nature of the overpayments
22.	As the overpayments were made by customers under a mistake, the customer has a claim in restitution against Pertemps in respect of the money it has paid.  The claim arises because Pertemps has been unjustly enriched as a consequence of the payment.  The customer’s claim arises under the common law (using old fashioned terminology, the claim is for money “had and received”).  To the extent relevant, Pertemps may be able to defend itself against such a claim – for example if it changed its position – but in practice it is unlikely that any of the usual defences to a restitutionary claim would apply in this case.
23.	Although a customer may have a restitutionary claim against Pertemps, a common law claim in restitution does not automatically give rise to a debt in favour of the customer.  Like many other common law claims, a debt does not arise unless and until a court gives judgment in favour of the customer for a specific amount.  This is no different from, say, a claim by a customer for breach of contract.  Of course, in practice, such claims are usually settled by agreement between the parties without resort to the courts – but the underlying principle remains the same.
24.	Nor does Pertemps hold mistaken payments on trust for the customer.  Pertemps does not receive the payments in a fiduciary capacity (such as a trustee or as an agent), and the payments are received into a mixed fund which is used for meeting Pertemps’ liabilities.  Customers could not make good a proprietary claim against Pertemps’ funds.
25.	We note that until released to the profit and loss account, the mistaken payments will be shown in Pertemps’ accounts as a liability owed to customers – either on its sales ledger or in the balance sheet account.  The fact that Pertemps accounts for such payments as a liability does not mean that Pertemps owes these amounts to customers.  Pertemps shows a liability in its accounts in accordance with good accounting practice, irrespective of whether there is a debt outstanding to the customer in question.  
26.	We find that amounts paid by mistake to Pertemps by customers belong to Pertemps unless and until the customer makes a successful claim in restitution against Pertemps, or such a claim is settled by agreement.
27.	We also note that it is unlikely that a restitutionary claim by a customer would ever be barred as a result of the Limitation Act.  This is because the limitation period only starts to run from when the customer discovers its mistake (or ought to have discovered its mistake) (Sempra Metals Ltd v IRC and another (HL) [2007] STC 1559).  In practice as soon as a customer discovers its mistake, it will make a claim for a repayment.  Pertemps therefore remains at risk of restitutionary claims irrespective of the length of time that has elapsed since the mistaken payment was received.
Profits of a trade
28.	Section 18(1)(a) ICTA provides that tax under Schedule D shall be charged in respect of :
“the annual profits or gains arising or accruing to any person ... from any trade ...”
29.	Section 60(1) ICTA provides:
“... tax shall be charged under Cases I and II of Schedule D on the full amount of the profits or gains of the year ...”
30.	The relevant case of Schedule D is Case I which states:
Case I:	tax in respect of any trade carried on in the United Kingdom or elsewhere but not contained in Schedule A.
31.	Section 42(1) FA 1998 provides (in respect of accounting periods beginning after 6 April 1999):
For the purposes of Case I or II of Schedule D the profits of a trade, profession or vocation must be computed on an accounting basis which gives a true and fair view, subject to any adjustment required or authorised by law in computing profits for those purposes.
(The words “on an accounting basis which gives a true and fair view” were replaced by the words “in accordance with generally accepted accounting practice” by FA 2002 s 103(5) with effect from 24 July 2002)
32.	We note that s42 FA 1988 applies for the purposes of Schedule D, Case I to compute the amount of profits.  However the first step is to determine the nature of the receipt – does it fall within Case I in the first place?  Only if it does, is s42 brought into action to determine the amount that is brought into account as profits.  
33.	It is common ground that the accounts of Pertemps show a true and fair view  and are prepared in accordance with generally accepted accounting practice for the purposes of s42.  So if the overpayment is a receipt of Pertemps’ trade within Schedule D, Case I, it then follows that the amounts released to the profit and loss account each year fall to be treated as taxable profits.   The sole issue therefore before us is whether the overpayments are profits arising or accruing from Pertemps’ trade.
34.	Pertemps’ case is that for a receipt to be within the scope of a trade, there must be some legal nexus or “entitlement” that links the receipt to the trade.  Where a payment is made by mistake, the payment lacks the legal entitlement that is needed to link it to a trade.  Mr Schwarz referred us to Ransom v Higgs (HL) [1974] 3 All ER 955 and the speeches of Lord Reid (at 955d) and Lord Wilberforce (at 964f) which indicates that for there to be a trade, the trader must be providing something (goods or services) for reward – there is a bilateral relationship.  Amounts paid in error, he submits, are not trading transactions, as the payment is unilateral, and nothing is provided for the payment.
35.	We were also referred to the cases of Morley v Messrs Tattersall (CA) (1938) 22 TC 51 and Jay’s the Jewellers v IRC (HC) (1947) 29 TC 274.  The Tattersall case related to payments made by purchasers to a partnership that carried on an auction business.  The firm held substantial balances that were not claimed by sellers.  Adjustments were made in the accounts of the firm when new partners were admitted.  It was held by the Court of Appeal that the unclaimed sale proceeds did not amount to trading income of the firm, as the balances belonged to the sellers and not the firm.  Jay’s the Jewellers was a pawnbroker, and the case related to the proceeds arising from the sale of unredeemed pledges.  The pledger could claim the proceeds of sale (less the loan, interest and expenses of sale) – but in practice rarely did so.  Depending upon the amount of the loan, the pledger’s right to claim the surplus sale proceeds became barred after either three or six years.  The High Court held that the surplus should be brought into account as the income of the taxpayer at the time when the pledger’s right to demand payment became barred.  
36.	Mr Schwartz submitted that in Jay's the Jewellers, the reason that the taxpayer was liable to tax on the unclaimed sale proceeds was because of the particular laws relating to pawns, and the special property that the pawnbroker had in the goods.  This meant that a legal entitlement arose after three years, and it was this new legal entitlement which gave rise to the taxable income.  Further, in the case of Pertemps, the customer’s right to claim repayment of any overpayments would never become time barred (for the reasons outlined earlier) – and therefore the overpayments would never become trading receipts of Pertemps. 
37.	We do not agree with Mr Schwarz's submissions in relation to either Jay's the Jewellers or  Tattersall.  We would distinguish the circumstances in both Tattersall and Jay's from the case before us.  In both cases, the funds in question were held by the taxpayer in a fiduciary capacity, and were not beneficially owned by it (or – in the case of Jay’s – the taxpayer recognised income only when the rights of the beneficial owner became time barred).  In the case before us, Pertemps does not have a fiduciary relationship with its customers, and the overpayments received by it are not subject to any trust or proprietary claims.  Although in the case of Tattersall the payments were not segregated from the auctioneer’s other moneys, the amounts received were never the auctioneer’s.  The payments were received by the auctioneer in a fiduciary capacity as agent for the seller, and belonged to the seller.  In the case of Jay’s, an item of personal property was transferred to the pawnbroker as security for a loan. Beneficial ownership of the pledge remained with the pledger, subject to the pawnbroker’s entitlement to realise the pledge should the loan not be repaid.  However the pawnbroker holds the excess proceeds of sale in a fiduciary capacity, and remains liable to account for the surplus to the pledger until such time as the pledger’s right to demand payment becomes time barred. Mr Schwartz submitted that a new legal entitlement arose in the case of Jay's the Jewellers because of the special property that the pawnbroker had in the pledged assets.  However this special property only arises in the case of smaller loans. Pledges against loans for more than £10 do not give rise to any special property, and the right of  the pawnbroker to keep the surplus sale proceeds arises after six years under the Limitation Act.  
38.	We disagree with Pertemps' submission that a receipt can only be within the scope of a trade if there must be some legal nexus or “entitlement” that links the receipt to the trade.  For example, the fact that a payment is voluntary or unilateral does not prevent the payment from being treated as taxable profit.  In IRC v Falkirk Ice Rink Ltd (CS) (1975) 51 TC 42 a curling club made a donation to the Falkirk ice rink to prevent it from closing.  The payment was held to be taxable profit in the hands of the recipient. Mr Schwartz asserted that this was the only authority where a voluntary payment was held to be trading profits, and that it was exceptional for voluntary payments to be taxable – but in our view it is clear from the opinion of Lord Cameron that the exceptional cases are the ones where the recipient escapes tax.  In Simpsons v John Reynolds and Co Insurances Ltd (CA) [1975] STC 271 a customer made an ex-gratia payment to its insurance broker following the takeover of the customer by ICI, and the transfer of its insurance to ICI's group arrangements.  The taxpayer only escaped paying tax in relation to the gratuity because "it was possible wholly to isolate the payment from any past or existing or future commitment or professional links or association between giver and recipient" (per Lord Cameron, commenting on John Reynolds in Falkirk at 51D-E).  
39.	Another example of  a unilateral payment being treated as a trading receipt is that of Smart v Lincolnshire Sugar Co Ltd (HL) (1937) 20 TC 643, which concerned subsidies paid by the government to sugar manufacturers.  The subsidies were repayable if sugar prices increased, and in certain other circumstances – but were otherwise not repayable.  The subsidies were held to be trading receipts of the taxpayer.
40.	Smart v Lincolnshire Sugar Co Ltd  also illustrates that the fact that a customer may have a claim against the taxpayer does not prevent the payment representing trading profits.  The case of CIR v Savundranayagam (PC) (1957) 67 TC 239 concerned payments made on the basis of fraudulent documents; as the payment was made under a mistake of fact, the customer had a claim in restitution against the taxpayer.  The taxpayer submitted that no taxable profit arose until it became entitled to receive the purchase price, and as the customer had an adverse claim, no taxable profit arose.  The Privy Council held that the fact that a customer may have a claim against the taxpayer did not prevent the payment from being taxable profits. Elson v Prices Tailors Ltd (HC) [1963] 1 WLR 287 concerned the tax treatment of deposits paid by customers of a chain of outfitters for bespoke garments.  It was the policy of the taxpayer to return the deposit to any customer who – for any reason – declined to take the garment he had ordered. In some instances deposits were returned many years after he had ordered the suit.  The High Court held that the deposits were trading receipts of the taxpayer, the use of the word deposit making it clear that the customer should not expect the return of the monies, notwithstanding that it was the taxpayer’s policy and practice to refund the deposit. Gower Chemicals Ltd v HMRC (SpC) [2008] UKSPC 713 concerned a taxpayer who sold chemicals which were supplied in returnable containers.  Customers paid a "refundable deposit" in respect of the containers.  If the container was returned in good condition and in a reasonable time, a credit note was issued which could be used against invoices raised by the taxpayer or would, in practice, be repaid.  It was held that the deposits were trading receipts (subject to a provision for the proportion of the deposits (about 80%)  that would be applied against future orders or be refunded).  We note that – as with Pertemps – in a small number of cases, customers had paid the credit note mistaking it for an invoice.  The officer presenting the case to the Tribunal conceded that such payments would not be a taxable receipt – but no such concession is made in this case.
41.	The principal case in support of Pertemps' position is Anise Ltd and others v HM Inspector of Taxes (SpC) [2003] STC (SCD) 258.  This is a decision of the Special Commissioners which relates to publishers who were paid by advertisers in instalments, and the instalments were paid by standing order.  In some cases, payments were made in error. The taxpayer would refund mistaken payments on request, subject to an administration fee. The tribunal held that the mistaken payments were not trading receipts.  We note that HMRC were not represented by counsel before the Special Commissioners, and that the tribunal did not have the benefit that we have had of the extensive and comprehensive review of all the relevant authorities.  In particular, the tribunal appears to have grounded its decision on the basis that the payments were received after the trading relationship with the customer had ended and that the risk of claims by customers for restitution was comparable to the auctioneer's liability to sellers – such as to bring Anise  within the scope of Tattersall.   For the reasons we have given, we consider that such an approach is inappropriate as the taxpayers did not have any fiduciary relationship with their customers.  We also note that the decision of the Special Commissioners in Anise is inconsistent with the decision of the Special Commissioners in the later case of Forbes v Director of the Asset Recovery Agency (SpC) [2007] STC (SCD) 1.  In that case, the tribunal held (in the context of fraudulent trading) that the fact that the appellant may have a liability to make refunds did not prevent the receipts being treated as trading profits:
"13.  The assessments for those periods must, I think, be upheld.  There was evidently a trading source, i.e. the systematic fraudulent activity of obtaining deposits.  The full amount deposited by the investors was appropriated by Mr Forbes to his own use,  In this connection I know nothing of the steps, if any, taken by the investors to recover the money lost by them.  He may one day have to disgorge the proceeds of his criminal activities to the investors; but that feature does not prevent the full amount of the payments by the investors from ranking, prime facie, as taxable trading receipts."
42.	We therefore consider that the decision of the Special Commissioners in Anise should be restricted to its particular facts. 
43.	HMRC's submission, with which we agree, is that an mistaken payment for services has the same characteristic in the hands of the recipient trader as a payment made not in error – if the payment is made because the customer makes a mistake about owing something for services or for a trading transaction, the mistaken payment accrues from the trade of the recipient. This is entirely consistent with the manner in which Pertemps operates its business.  At the time payments are deposited into Pertemps' bank account, it does not distinguish between overpayments and other receipts.  Indeed it could not – as Pertemps banks payments before they are allocated to invoices on its ledgers.  Even if a receipt is eventually determined to be an overpayment, it will often be applied against other invoices rendered to the customer.   
44.	We note that Stamp LJ in John Reynolds (at 274-275) used as an example of a trading receipt a payment "... made to satisfy any legal liability, real or imagined, to which the customer was or believed itself to be subject."  HMRC submit, and we agree, that the overpayments are a natural consequence of the efficient and lawful way in which Pertemps conducts its business, and that these processes will mean that sometimes it makes more money from the supply of its services than it had anticipated.  In doing so, it has supplemented its trading profits, and the receipt is a trading receipt.  
Conclusions
45.	In our view, the overpayments received by Pertemps arise because of Pertemps' trading activities, and are therefore receipts arising or accruing from its trade.  The payments were made by customers in the mistaken belief that they owed money to Pertemps for services Pertemps had supplied to them in the course of Pertemps' trade.  Even though Pertemps did not carry on any specific activity which might be said to earn or encourage the receipt of these mistaken payments, their receipt is an inevitable and unavoidable incident of Pertemps' trade.  Pertemps did not segregate the mistaken payments from its other receipts, and treated the mistaken payments as its own money, as indeed they were.  The fact that the payments were unilateral or that customers may have an entitlement to claim the money back does not prevent the payments from being trading profits.
46.	It is not in dispute that Pertemps' accounts show a true and fair view  and are prepared in accordance with generally accepted accounting practice.  As we have determined that the overpayments are receipts of Pertemps’ trade within Schedule D, Case I, it then follows that the amounts released to the profit and loss account each year fall to be treated as taxable profits.   
47.	We therefore dismiss the appeal.
48.	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.

NICHOLAS ALEKSANDER

TRIBUNAL JUDGE
RELEASE DATE: 13 May 2010

Cases referred to in submissions but not mentioned in the decision:

Mitchell and Eldon v Ross (1959/63) 40 TC 11
Bamford v ATA Advertising Ltd (1972) 48 TC 359
Gallagher v Jones [1993] STC 537
Deeny v Gooda Walker Ltd [1996] STC 299
Tapemaze Ltd v Melluish [2000] STC 189
HMRC v William Grant and Sons Distillers Ltd [2007] STC 680