The founder of Gü chocolate desserts has been ordered to pay £120,000 bill after losing a tax case over the acquisition of his £3m country home.

James Averdieck, 56, and his wife, Charlotte, purchased the 14-acre home in August 2020 – the address was not disclosed in legal documentation – with the couple initially paid £258,630 in purchase tax. However, they used a tax refund company to request HM Revenue & Customs (HMRC) return £119,180 to them due to the ‘mixed use’ of a public footpath at the edge of the property.

Tax refund company Cornerstone, headed up by tax advisor David Hannah, who himself has been found to have wrongfully dodged paying the stamp duty levy, argued during the couple’s first-tier tax tribunal that the Averdiecks should pay less duty because the footpath was commercial land.

The judge rejected Cornerstone’s claim and ruled the couple should have paid the entire tax rate.

Meanwhile, HMRC hopes the case serves as warning to those considering getting involved with tax refund agents.

The Averdiecks filed a stamp duty tax return in September 2020 declaring they owed £258,630 based on the property being classed as residential.

In December of that year, the appellants’ agent, listed in documentation as Cornerstone, sent a letter to HMRC saying that analysis determined the property was misclassified as being residential.

The agent argued it should have instead been classed as ‘mixed use’ because the ‘public footpath which runs across the rear of the property is classed as a public highway by the local highway agency,’ the documents state.

‘The public footpath restricts the use of the land acquired by our client and as such, the public footpath does not contribute to the reasonable enjoyment of the dwelling.’

The firm amended the return and sought repayment of £119,180 with interest.

HMRC opened an inquiry into the request and after several months and reviews, the Averdieck family’s ‘closure notices’ were upheld.

In January of this year, Cornerstone appealed the decision to the tribunal.

However, Judge Anne Scott has now dismissed the appeal alleging that the burden of maintenance obligations caused by the footpath does not ‘impinge so heavily that the lane cannot be residential property’.

She explained: “The Lane is used by the appellants since they use it whenever they come in or out of the Property. They can use it for walking as the members of the public do. Certainly, they do have the statutory obligations as does every other owner of a bridleway or public footpath,’ she said.

“At the time the Property was purchased, Mr Averdieck knew about the five new houses and the farm and his obligations, so he did try to exclude the Lane from the purchase but that did not prove to be possible. I accept that he never wanted to own it but it was part of the ‘package’.”

She also ruled the footpath has “no requirement for active use” and argued that “whether or not the appellants use the Lane beyond the point at which they turn off the Lane to drive up to their gates, is irrelevant”.

“Whilst I accept that the farmer’s business is a commercial operation, it is conducted on his farm. It is no more conducted in the lane than it is on the main road,” she added. “If Mr Averdieck or any of the five other householders who use the lane for access to their properties were to conduct a business from their homes, they would not be conducting their business from the lane.”

She went on: “The Amazon drivers making deliveries do so in the course of Amazon’s business but Amazon’s premises do not include the lane.”

Judge Scott concluded: “I do not accept that the lane constitutes a commercial operation. It is like any other public right of way and I find that it forms part of the grounds of the property.”

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