The Commissioners for Her Majesty's Revenue and Customs v National Exhibition Centre Limited
| Jurisdiction | UK Non-devolved |
| Judgment Date | 20 January 2015 |
| Neutral Citation | [2015] UKUT 0023 (TCC) |
| Appellant | |
| Respondent | NATIONAL EXHIBITION CENTRE LIMITED |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Appeal Number | FTC/89/2013 |
[2015] UKUT 0023 (TCC)
Appeal number: FTC/89/2013
VAT – exemption - financial services – Art 13B(d)(3), Sixth Directive –
Group 5, Sch 9 VATA 1994 – booking fees on concert ticket purchases –
whether for “card processing services” ─ effect of Scottish Court decision
on English tribunal
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS
Appellants
- and -
NATIONAL EXHIBITION CENTRE LIMITED Respondent
TRIBUNAL:
THE HON MR JUSTICE ROTH
JUDGE ROGER BERNER
Sitting in public at The Royal Courts of Justice, Rolls Building, London EC4 on
7 November 2014
Nigel Pleming QC and Alan Bates, instructed by the General Counsel and
Solicitor to HM Revenue and Customs, for the Appellants
Jonathan Peacock QC, instructed by Deloitte LLP, for the Respondent
© CROWN COPYRIGHT 2015
DECISION
Introduction
1. This is the appeal of HMRC against the decision of the First–tier Tribunal 5 (Judge Kempster and Mr Bayliss) (“the FTT”) released on 7 May 2013 allowing the
appeal of National Exhibition Centre Limited (“NEC”) against HMRC’s decision to
refuse to repay value added tax (“VAT”) that NEC considered had been overpaid on
the booking fees it charged to customers in cases where the customers purchased
tickets for concerts by means of debit or credit cards. NEC had paid VAT on the 10 assumption that the transactions involved a standard rated supply but by its claim
contends that they constituted an exempt supply.
2. In its decision, which is reported at [2013] UKFTT 289 (TC), the FTT
determined that the booking fees which NEC charged to customers who booked
tickets in the period 1 August 1999 to 30 April 2002 (“the relevant period”) were, 15 first, consideration for supplies of “card processing services”, and secondly that those
supplies were exempt from VAT pursuant to the exemption in respect of financial
services in Article 13B(d)(3) of the Council Directive 77/388/EEC of 17 May 1977
(“the Sixth Directive”) (now Article 135(1)(d) of the Principal VAT Directive;
Council Directive (EC) 2006/112/EC of 28 November 2006). 20
3. With permission granted by the FTT, HMRC have appealed against the decision
of the FTT in both of those respects. This decision is concerned only with the first,
which has been described as “the Supply issue”. The second, “the Exemption issue”,
arises only if we dismiss HMRC’s appeal on the Supply issue and find, in common
with the FTT, that the booking fees were consideration for card processing services. 25 In that event, the parties submitted, and we have indicated that we accept, that the
Exemption issue should be referred to the Court of Justice of the European Union
(“ECJ”) for a preliminary ruling. In the light of that, neither side addressed us on the
Exemption issue.
4. There is a further limitation on the scope of this appeal. It was argued for 30 HMRC before the FTT that the booking fees were not, as NEC claimed, consideration
for a supply made by NEC separate from the supply by the concert promoter, for
whom NEC acted as agent, of the ticket, but that there was only a single supply of the
ticket and the booking fee represented part of the consideration for that supply. The
FTT rejected HMRC’s case in that respect, finding that the booking fees were charged 35 by NEC on its own account as principal and not as agent for the promoter. There is
no appeal from that decision of the FTT.
5. Although this appeal relates solely to the relevant period, similar questions arise
in respect of decisions of HMRC on claims by NEC for other periods. The position of
the parties before the FTT was that the conclusions reached in the appeal before it 40 should be treated as determining all those claims. The FTT expressed concern at the
propriety of seeking to determine factual matters for periods for which it had no, or
incomplete, evidence. It accordingly confined itself to determining the appeal for the
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