“[The Company is] making supplies of access to a marketplace/exhibition along with advertising and other accompanying services and this supply is not considered to be an exempt supply of a licence to occupy land. As such, these services are standard rated for VAT.”
“Currently, HMRC regards the supply of specific stand space at an exhibition or conference as a supply of land. This policy will continue where the service is restricted to the mere supply of space without any accompanying services.”
“Nothing herein shall be construed as creating the relationship of a landlord and tenant between the Licensor and the Licensee or as granting to the Licensee any proprietary rights in the Premises”
“ Right to Let The Centre reserves the right to refuse any hire and to hire different parts of the Showground to different hirers simultaneously. In the event of different parts of the Showground being hired simultaneously the Centre has the right to determine the use of the main entrances, the car parks and the entrances to the various events.”
“In addition to the dates upon which each Event is held, the [owner] shall permit the Licensee (a) to use the Showground for reasonable periods of time up to 7 calendar days prior to each Event on a non-exclusive basis for the preparation of each Event (b) to use the Showground for a reasonable period of time up to 5 calendar days after each Event on a non-exclusive basis for the clearing and the cleaning up of the Showground”
“The Licence is granted subject to the right of the [owner] and all others authorised by the [owner] to use the roads and pathways and other services at the Showground and accommodating the buildings thereon”
“The Licence is not intended to and does not create any tenancy nor give the Licensee any estate or interest in the Showground or any part of it or any of its buildings”
“ Reserved Right of Access The [owner] reserves a right of access to all parts of the Showground at all times and for all purposes for themselves, their agents and their employees (unless otherwise agreed in writing)”
“ Use of the Showground and the Common Parts The [owner] reserves the right in the event of different parts of the Showground being the subject of one or more licences simultaneously with this Licence to regulate the use of the Showground the Common Parts and the entrances and exits thereof”
“this licence does not create a tenancy or lease to which theLandlord and Tenant Act 1954 applies”
“1. Member States shall exempt the following transactions: … (l) the leasing or letting of immovable property.”
“A supply of goods or services is an exempt supply if it is of a description for the time being specified in Schedule 9 …”
“The grant of any interest in or right over land or of any licence to occupy land, …”
“This Brief provides a statement of HM Revenue & Customs' (HMRC’s) policy on the place of supply of services connected to land following discussions at EU level. It also details changes to HMRC’s published policy in respect of the treatment of exhibition stands, storage and warehousing, and access to airport lounges. The Brief is concerned only with determining the place of supply of these services. It does not affect HMRC’s guidance or policy on the rate of tax that applies to any such supplies. Readership This Brief is aimed at businesses that make or receive supplies of services connected to land and property. In particular it will affect businesses that: · supply or buy in stands at exhibitions · … Background The place of supply of services rules are an important concept in VAT as they are used to determine the country in which VAT is due so as to avoid either taxing the same supply twice or not taxing it at all. … The changes to the place of supply rules from1 January 2010 and1 January 2011 , highlighted differences in the treatment of certain supplies in various Member States. This has led to some businesses suffering double taxation. As it has not been possible to solve this issue in isolation, HMRC has been working with the Commission and EU Member States to try to agree the uniform application of Article 47 (services connected to land and property). As a result of these discussions HMRC is changing aspects of its policy on the place of supply of: · stands at exhibitions · … Further details of these changes are given below. … Stand space at exhibitions and conferences Currently HMRC regards the supply of specific stand space at an exhibition or conference as a supply of land. This policy will continue where the service is restricted to the mere supply of space without any accompanying services. However, where stand space is provided with accompanying services as a package, this package (stand and services) will no longer be seen as a supply of land with land related services but will be taxed under the general place of supply rule (customer location) when supplied to business customers. Accompanying services provided as part of a package includes such things as the design and erection of a temporary stand, security, power, telecommunications, hire of machinery or publicity material. … Changes of HMRC policy Where businesses have been treating services in accordance with HMRC’s earlier policy, they may continue to apply that treatment for a transitional period of up to three months from the date of this Brief in order to make adjustments to their systems and processes. However, businesses that wish to adopt the new treatment may do so immediately if they wish. …”
“171. In Stichting ‘Goed Wonen’ v Staatssecretaris van Financiën (Case-326/99)[2003] STC 1137 , the CJEU said at [55] (emphasis added): “The fundamental characteristic of such a transaction, which it has in common with leasing, lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right.” 172. These words were repeated in C&E Comrs v Mirror Group (Case C-409/98 )[2001] ECR I-7175 at [31] and in Seeling v Finanzamt Starnberg (Case C-269/00 )[2003] STC 805 and in Sinclair Collis Ltd v C&E Comrs (Case C-275/01 )[2003] STC 898 at [25], where the principle was described as “settled.” 173. However, in Temco [ Belgium v Temco Europe SA (Case C- 10 284/03)[2005] STC 1451 ] the CJEU said that: "[24] …as regards the tenant's right of exclusive occupation of the property, it must be pointed out that this can be restricted in the contract concluded with the landlord and only relates to the property as it is defined in that contract. Thus, the landlord may reserve the right regularly to visit the property let. Furthermore, a contract of letting may relate to certain parts of a property which must be used in common with other occupiers. [25] The presence in the contract of such restrictions on the right to occupy the premises let does not prevent that occupation being exclusive as regards all other persons not permitted by law or by the contract to exercise a right over the property which is the subject of the contract of letting." 174. The Court in Temco did not appear to consider that this analysis was in conflict with the settled case law that the tenant must be able to exclude “any other person.” 175. In reliance on this passage from Temco , Mr Southern [taxpayer’s counsel] said that although Clause 15 of the T&C allows a representative or agent of WTL “to enter the premises…at any time during the Hire Period,” this does not prevent the client from having an “exclusive” right. More generally, he drew our attention to the “exclusive” nature of the agreement between WTL and the client, so that no other event could take place in the Rooms once a booking has been made. 176. We accept that the client has a right to occupy the Rooms to the exclusion of other clients. However, Clause 15 gives WTL’s representative the right to enter the premises without permission and without any restriction as to time. This is clearly in conflict with the “any other person” of the earlier authorities, and is also a significant extension to “the right regularly to visit the property” referred to in Temco . In our judgment it conflicts with the client’s right to use the Rooms “as owner.””
“ 'Leasing or letting of immovable property' in art 13B(b) of EC Council Directive 77/388 (the Sixth Directive) is a Community concept. The concept has not been comprehensively defined in Community jurisprudence, but it does include what in English law is characterised as a licence to occupy land. In Sweden v Stockholm Lindöpark AB (Case C-150/99 )[2001] STC 103 at 113, para 38, the Advocate General (Jacobs) described the salient and typical characteristics of a lease or let. He said that it necessarily involves the grant of some right to 'occupy the property as one's own and to exclude or admit others, a right which is, moreover, linked to a defined piece or area of property'. With this description in mind, I think Mr Simpson, the chairman of the Manchester Value Added Tax Tribunal, hit the nail on the head. He observed that the real subject of the agreement is the machine and not the use or enjoyment of the land on which it stands or the airspace which it occupies for the time being (see (1997) VAT Decision 14950 , para 18). The parties wish to place the machine where it will maximise sales, preferably where customers will pass it. The machine will be placed where the site owner's staff can keep an eye on it and prevent vandalism and theft and the use of it by children. But subject to this, and to statutory fire and safety requirements, the position in which the machine is located does not much matter to either party. With all respect to the judge and the Court of Appeal, I agree with the chairman of the tribunal that, despite the static nature of the machines, such a licence is more naturally to be regarded as a licence to use land rather than a licence to occupy land.”
“60. In our view, the arrangements made between the Appellant and its clients do not constitute or include the grant of a licence to occupy land, here, the Castle and its grounds. The arrangements do not confer on the client exclusive rights of possession, occupation or control or the right to exclude others. Rather, these arrangements constitute the active commercial exploitation of the Castle as part of an overall package of supplies. The nature of the arrangements does not have the flavour of the grant of a licence of land, but is best understood as the provision of a range of commercial services part of which is making the Castle and its grounds available for use. These services include the benefits of management, superintendence and maintenance of the Castle. The provision of the Castle and the selected additional services supplied by the Appellant and third parties all go hand in hand. This is not the relatively passive activity of letting of land as contemplated by Article 13 of the Sixth Directive. 61. The arrangements and facilities provided added value to the provision of the Castle. They were not merely ancillary to the use or for the better enjoyment of the Castle. They were a substantial part of the overall package of facilities and services. These facilities and services which were provided by the Appellant, including making recommendations about the services of third parties, constitute along with the use of the Castle, a package of closely linked wedding function services.” (3) Contracts for private booths in an exotic dancing club in Dazmonda Ltd (T/A Sugar & Spice) v HMRC[2014] UKFTT 337 (TC) : “87. But the composite service supplied to the dancers was different. The club was not passive in its provision. It provided advertising, music, lighting, heating, cleaning, management, security and the use, in common with others, of the upper floor and its facilities. It added value to the simple provision of land. That was to our minds a supply properly characterised as the provision of services rather than the passive supply of land. 88. As a result that composite supply did not fall to be treated as a supply of land and is standard rated.” (4) By the High Court in connection with contracts for rooms in a massage parlour in Byrom & others (T/A Salon 24) v RCC[2006] STC 992 : “[70] … it is then necessary to categorise the resulting single supply viewed as a complex of elements (the provision of the licence and of the various services). In my judgment, the over-arching single supply is not to be treated as a supply of a licence to occupy land. The description which reflects economic and social reality is a supply of massage parlour services, one element of which is the provision of the room. That, in my judgment, is the correct conclusion even if, which for my part I think probably is the case, the provision of the room was, to the masseuse, the single most important element of the overall supply and, indeed, one predominating over the other elements taken together. This is a case where the tax treatment of the supply is self-evident once it is established that the other service elements are not ancillary to the provision of the licence.” (5) By the ECJ in connection with contracts for coin-operated vending machines in Sinclair Collis Ltd v CEC (Case C-274/01 )[2003] STC 898 : “30. … the occupation of an area or space at the commercial premises is, under the terms of the agreement, merely the means of effecting the supply which is the subject matter of the agreement, namely the guarantee of exercise of the exclusive right to sell cigarettes at the premises by installing and operating automatic vending machines, in return for a percentage of the profits.”
“ The essence of the matter, as it seems to me, is that, as the relevant jurisprudence has made clear, the exemption (which is to be strictly interpreted) does not extend to a licence to occupy land which is but one element of a package of supplies made by the taxpayer/lessor to his customer in consideration of a payment or payments by that customer where the supplies in question are commercial in nature or are best understood as the provision of a service and not simply as the making available of property. If that is the nature of the supply—a service rather [? than] simply the making available of property—there is no exempt licence: the licence element in the supply is standard-rated. Whether the resulting supply is properly to be regarded as a single indivisible economic supply which it would be artificial to split and, if so, how that supply is to be characterised for VAT purposes are issues that do not matter if all of its constituent elements are in any event standard-rated.”
“When interpreting an agreement, the court must have regard to the words used, to the provisions of the agreement as whole, to the surrounding circumstances in so far as they were known to both parties, and to commercial common sense.”
“24. I accept Mr McNab's [HMRC counsel’s] submission that in considering the transaction as a whole between Blenheim and the exhibitor one has to look at the written contract which establishes the relations between them. That contract is for space and the measure of the consideration which Blenheim receives is the size of that space. An examination of the terms and conditions which I have set out bears out Mr McNab's submission that they are predominantly concerned with the exhibitor's right to occupy space at an exhibition and more especially the obligations upon him, which are specific and considerable. In substance and reality what Blenheim supplies to the exhibitor in return for the consideration which it receives is in my judgment the right to occupy space at the venue to which the exhibitor expects that the sort of customer he wants to attend will come. What he is getting, in effect, is the right to set up his stall so that his potential customers can visit him there. Where he opts for space only that is literally what he gets and he has to employ his contractors to erect and complete his stand on the area of the exhibition floor which is allotted to him. Even when he takes a shell the fitting out of the stand is done by the exhibitor by employing his own contractors. Only exceptionally does the stand come fully fitted out. 25. At some stage the specific area of the exhibition floor, the space which the exhibitor has contracted for, has to be determined and allocated. That time cannot be later than when work to erect the stand or, if it is a shell, to complete the stand commences. From then or at any rate when the exhibitor takes physical possession of the stand until the end of his clearing up of the stand after the exhibition has closed the exhibitor does have exclusive occupation of land, being that specific area of the floor of the hall which is taken up by his stand, in that he alone or by his servants has the right to and actually enjoys the use of that space. Thus in my opinion the exhibitor does, when Blenheim in accordance with its contract with him provides to the exhibitor the space which he has contracted for and for which he has already paid (the evidence was that if he had not paid before the opening he would not be allowed in), the exhibitor does, to use the words of Russell LJ in the rating case Oswestry Corporation v. Hudd[1966] 1 ALL ER 490 ; at pp 496 and 498, in highlighting this as being a significant feature of a licence to occupy land, enjoy for a measurable period of time “a privileged position of special occupancy” in relation to a specific area of land. 26. It is obvious that the selling point made by Blenheim to potential exhibitors has to be the right to attend the exhibition and the opportunities for business that will give them. I accept that the success of Blenheim's business as an organiser of exhibitions depends upon its putting on exhibitions at which exhibitors get what they want so they come. That Blenheim's efforts as part of its business activities are also directed at trying to see that the right sort of potential customers turn up and in sufficient numbers makes the right of an exhibitor to be at the exhibition with his own stand likely to be more sought after. It increases the value of that right but not its nature, which is the right of the exhibitor to have his stand peculiar to him inside the exhibition to which his customers can come. The position in principle is no different to that of the stallholder with his own stall for the day in Tameside. That with a long established market, as in that case with competition amongst traders for available stalls, people come there to buy out of regular habit or because its existence is well known and so no special efforts on the part of the market owner are required to advertise it, is not in my view a significant difference changing the nature of what is being provided. 27. I can understand how an exhibitor may express his satisfaction with the quality and number of customers coming to his stand rather than singing the praises of his particular stand or its position, although some positions are bound to be more favoured than others. But that in my judgment does not mean that in substance and reality the true subject matter of the agreement between the organiser and exhibitor is simply the provision of an opportunity to meet potential customers (Blenheim has a disclaimer in its contract if expected customers or other exhibitors do not turn up) to which the occupation of land is merely ancillary. Having and occupying a stand at the exhibition is, as I have said, what viewed objectively is important, although of course that occupation of the land as with all occupation of land is for a purpose and not just for its own sake. 28. On those grounds in my judgment what in substance and reality Blenheim is providing to the exhibitor in return for the consideration which it receives is a licence to occupy land. …”
“… in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter …”
“There are two different levels at which the court undertakes the task of interpretation in this case. The first level is that of the Sixth Directive, because, although that has no legal force as such in the United Kingdom, it is now well-established that the court must interpret domestic legislation in accordance with any applicable European directive. So the court has to satisfy itself as to the meaning of that underlying legislation. The second level at which the court must undertake the task of interpretation is at the level of the VATA 1994 . This of course is domestic law. The former task must be carried out in accordance with the principles laid down by the Court of Justice, which is the final arbiter on what Community legislation means. The latter task, however, is conducted under the principles of domestic law but for the purpose not of interpreting the statute in the ordinary way but of fulfilling the requirement of European Union law that a national court should interpret a statute which implements a directive, so far as possible, in the light of the wording and purpose of that directive.”
“ 16. It should be observed at the outset that according to settled case law the exemptions provided for in art 13 of the Sixth Directive have their own independent meaning in Community law and must therefore be given a Community definition (see EC Commission v Ireland (Case C-358/97 )[2000] ECR I-6301 , para 51; Maierhofer v Finanzamt Augsburg-Land (Case C-315/00 )[2003] STC 564 ,[2003] ECR I-563 , para 25; and Sinclair Collis Ltd v Customs and Excise Comrs (Case C-275/01 )[2003] STC 898 ,[2003] ECR I-5965 , para 22). 17. Secondly, the terms used to specify the exemptions provided for by art 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, EC Commission v Ireland (Case C-358/97 )[2000] ECR I-6301 , para 52; Sweden v Stockholm Lindöpark AB (Case C-150/99 )[2001] STC 103 ,[2001] ECR I-493 , para 25; and Sinclair Collis Ltd v Customs and Excise Comrs (Case C-275/01 )[2003] STC 898 ,[2003] ECR I-5965 , para 23). As the Advocate General rightly states at para 37 of his opinion, the requirement of strict interpretation does not mean, however, that the terms used to specify exemptions should be construed in such a way as to deprive the exemptions of their intended effect. 18. As regards the exemptions laid down under art 13B(b) of the Sixth Directive, it must be noted that that provision does not define 'letting', nor does it refer to relevant definitions adopted in the legal orders of the member states (see Stichting 'Goed Wonen' v Staatssecretaris van Financien (Case–326/99)[2003] STC 1137 ,[2001] ECR I-6831 , para 44, and Sinclair Collis , para 24). That provision must therefore be interpreted in the light of the context in which it is used, and of the objectives and the scheme of the Sixth Directive, having particular regard to the underlying purpose of the exemption which it establishes (see, to that effect, Goed Wonen , para 50). 19. In numerous cases, the court has defined the concept of the letting of immovable property within the meaning of art 13B(b) of the Sixth Directive as essentially the conferring by a landlord on a tenant, for an agreed period and in return for payment, of the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right (see, to that effect, Goed Wonen , para 55; Customs and Excise Comrs v Mirror Group plc (Case C-409/98 )[2001] STC 1453 ,[2002] QB 546 , para 31; Customs and Excise Comrs v Cantor Fitzgerald International (Case C-108/99 )[2001] STC 1453 ,[2002] QB 546 , para 21; Seeling v Finanzamt Starnberg (Case C-269/00 )[2003] STC 805 ,[2003] ECR I-4101 , para 49; and Sinclair Collis Ltd v Customs and Excise Comrs (Case C-275/01 )[2003] STC 898 ,[2003] ECR I-5965 , para 25). 20. While the court has stressed the importance of the period of the letting in those judgments, it has done so in order to distinguish a transaction comprising the letting of immovable property, which is usually a relatively passive activity linked simply to the passage of time and not generating any significant added value (see, to that effect, Stichting 'Goed Wonen' v Staatssecretaris van Financien (Case–326/99)[2003] STC 1137 ,[2001] ECR I-6831 , para 52), from other activities which are either industrial and commercial in nature, such as the exemptions [query sic “exceptions”?] referred to in art 13B(b)(1) to (4) of the Sixth Directive, or have as their subject matter something which is best understood as the provision of a service rather than simply the making available of property, such as the right to use a golf course ( Sweden v Stockholm Lindöpark AB (Case C-150/99 )[2001] STC 103 ,[2001] ECR I-493 , paras 24 to 27), the right to use a bridge in consideration of payment of a toll ( EC Commission v Ireland (Case C-358/97 )[2000] ECR I-6301 ) or the right to install cigarette machines in commercial premises ( Sinclair Collis Ltd v Customs and Excise Comrs (Case C-275/01 )[2003] STC 898 ,[2003] ECR I-5965 , paras 27 to 30). 21. The actual period of the letting is thus not, of itself, the decisive factor in determining whether a contract is one for the letting of immovable property under Community law, even if the fact that accommodation is provided for a brief period only may constitute an appropriate basis for distinguishing the provision of hotel accommodation from the letting of dwelling accommodation ( Blasi v Finanzamt München I (Case C-346/95 )[1998] STC 336 ,[1998] ECR I-481 , paras 23 and 24). 22. In any event, it is not essential that that period be fixed at the time the contract is concluded. It is necessary to take into account the reality of the contractual relations ( Blasi , para 26). The period of a letting may be shortened or extended by the mutual agreement of the parties during the performance of the contract. 23. Furthermore, while a payment to the landlord which is strictly linked to the period of occupation of the property by the tenant appears best to reflect the passive nature of a letting transaction, it is not to be inferred from that that a payment which takes into account other factors has the effect of precluding a 'letting of immovable property' within the meaning of art 13B(b) of the Sixth Directive, particularly where the other factors taken into account are plainly accessory in light of the part of the payment linked to the passage of time or pay for no service other than the simple making available of the property. 24. Lastly, as regards the tenant's right of exclusive occupation of the property, it must be pointed out that this can be restricted in the contract concluded with the landlord and only relates to the property as it is defined in that contract. Thus, the landlord may reserve the right regularly to visit the property let. Furthermore, a contract of letting may relate to certain parts of a property which must be used in common with other occupiers. 25. The presence in the contract of such restrictions on the right to occupy the premises let does not prevent that occupation being exclusive as regards all other persons not permitted by law or by the contract to exercise a right over the property which is the subject of the contract of letting. 26. As regards the transaction at issue in the main proceedings, it is for the national court to consider all the circumstances surrounding it in order to establish its characteristics and to assess whether it can be treated as a 'letting of immovable property' within the meaning of art 13B(b) of the Sixth Directive. 27. It is also a matter for that court to establish whether the contracts, as performed, have as their essential object the making available, in a passive manner, of premises or parts of buildings in exchange for a payment linked to the passage of time, or whether they give rise to the provision of a service capable of being categorised in a different way.”
"[24] …as regards the tenant's right of exclusive occupation of the property, it must be pointed out that this can be restricted in the contract concluded with the landlord and only relates to the property as it is defined in that contract. Thus, the landlord may reserve the right regularly to visit the property let. … [25] The presence in the contract of such restrictions on the right to occupy the premises let does not prevent that occupation being exclusive as regards all other persons not permitted by law or by the contract to exercise a right over the property which is the subject of the contract of letting."
“… since the activity of running a golf course entails not only the passive activity of making the course available but also a large number of commercial activities, such as supervision, management and continuing maintenance by the service-provider and the provision of other facilities, letting out a golf course cannot, in the absence of quite exceptional circumstances, constitute the main service supplied” (2) The ECJ then noted that in Luc Varenne it was considering collective use by a football club rather than access by individual golfers: “27. Admittedly, the circumstances in the main proceedings differ from those of the transaction at issue in the case which gave rise to the judgment in Stockholm Lindöpark , given that, first, the main proceedings concern a 'collective' use of facilities by a club, and not individual access by players; second, that use is repetitive and extended and, in principle, is exclusive on the agreed days, and, third, the duties and prerogatives of the corporation as lessor seem, in part, to be dictated by what is inherently necessary for the use, for rental purposes, of sporting facilities which may host a wide range of bodies and individuals.” (3) The ECJ then referred back to the need for there to be “quite exceptional circumstances” for the letting of sports facilities to be an exempt supply: “28. The court must however state that the order for reference does not suggest, without prejudice to the assessment of the facts which is the task of the referring court, that there are quite exceptional circumstances which permit the conclusion that the use of the football ground constitutes the main service supplied in the transaction, so that the transaction can be classified as a letting of immovable property within the meaning of art 13B(b) of the Sixth Directive.” (4) The ECJ then described the other services supplied by the stadium owner, and considered separately (a) supervision, and (b) management, maintenance and cleaning: “29. In the circumstances of the main proceedings, what seems to be involved is the supply, by the corporation, of a more complicated service consisting of provision of access to sporting facilities, where the corporation takes charge of the supervision, management, maintenance and cleaning of those facilities. 30. As regards, first, supervision, namely the rights of access to the sporting facilities and the control of that access conferred on the corporation, it is true that those rights cannot, in themselves, preclude the classification of the transaction at issue in the main proceedings as a letting within the meaning of art 13B(b) of the Sixth Directive. Such rights may be justified in order to ensure that the use of those facilities by the lessees is not disturbed by third parties. The court has previously stated that the presence of restrictions on the right to occupy the premises let does not prevent that occupation being exclusive as regards all other persons not permitted by law or by the contract to exercise a right over the property which is the subject of the letting contract (judgment in Belgian State v Temco Europe SA (Case C-284/03 )[2005] STC 1451 ,[2004] ECR I-11237 , para 25). 31. In the circumstances at issue in the main proceedings, the rights of access to the sporting facilities and the control of that access seem none the less to have the effect, by means of a caretaking service, that representatives of the corporation are permanently present at those facilities, which could be evidence to support the view that the role of the corporation is more active than that which would arise from a letting of immovable property within the meaning of art 13B(b) of the Sixth Directive. 32. As regards, secondly, the various services of management, maintenance and cleaning, it appears that they are, for the most part, actually necessary to ensure that the facilities in question are suitable for the use for which they are intended, in other words sporting events and, more specifically, football matches in accordance with the applicable sporting regulations. 33. It must therefore be held that the facilities required for that purpose are, by means of the offered services of repair and upgrading, made available to RFCT [ie the football club user] in a condition which permits their use for the agreed purposes and that the provision of access to those facilities for that specific end constitutes the supply which is characteristic of the transaction at issue in the main proceedings (see inter alia, by analogy, the judgments in Ministero dell'Economia e delle Finanze v Part Service Srl (Case C-425/06 )[2008] STC 3132 ,[2008] ECR I-897 , paras 51 and 52; Field Fisher Waterhouse LLP v Revenue and Customs Comrs (Case C-392/11 )[2013] STC 136 , para 23; and Minister Finansow v RR Donnelley Global Turnkey Solutions Poland sp z oo (Case C-155/12 )[2014] STC 131 , para 22). 34. In that regard, the economic value of the various services supplied, those representing, according to the order for reference, 80% of the charge which is agreed in the contract to be payable, also constitutes evidence which supports the classification of the transaction at issue in the main proceedings, considered as a whole, as a supply of services rather than as a letting of immovable property within the meaning of art 13B(b) of the Sixth Directive.” (5) The ECJ concluded that: “35. … it is for the referring court to assess whether all the services offered by the corporation are in fact necessary in order to provide access to the sporting facilities for the purposes agreed in the contract, that is exclusively for the purposes of football.”
“ The central issue [18] The issue is therefore the correct classification of that single composite supply. The question is whether it is exempt either as the grant of a 'licence to occupy land' or as the 'leasing or letting of immovable property'. [19] I dealt at length with the question of the proper classification of a single composite supply in Byrom (t/a Salon 24) v Revenue and Customs Comrs[2006] EWHC 111 (Ch) ,[2006] STC 992 (' Byrom '). I included a lengthy discussion of several cases including Card Protection Plan Ltd v Customs and Excise Comrs[2001] UKHL 4 ,[2001] STC 174 ; sub nom Card Protection Plan Ltd v Customs and Excise Comrs (No 2)[2002] 1 AC 202 (' CPP ') when it returned to the House of Lords after a reference to the Court, Dr Beynon and Partners v Customs and Excise Comrs[2004] UKHL 53 ,[2005] STC 55 ,[2005] 1 WLR 86 (' Dr Beynon ') and College of Estate Management v Customs and Excise Comrs[2005] UKHL 62 ,[2005] STC 1597 ,[2005] 1 WLR 3351 (' College of Estate Management '). I do not see any reason to qualify anything which I said in my judgment in Byrom . [20] At [30] of my judgment in Byrom , I looked at the issue of whether questions of classification were questions of law or not. I cited [26] and [27] of Lord Hoffmann's speech in Dr Beynon . He concluded that the characterisation (to use his word) of a supply was, indeed, a matter of law, although it would be 'customary for an appellate court to show some circumspection before interfering with the decision of the tribunal merely because it would have put the case on the other side of the line'. Although Lord Hoffmann said what he did in the context of the question 'one supply or separate supplies', the same approach must, in my view, be applied to the correct classification of the single supply once identified. Thus, in Dr Beynon , once it was decided that there was a single supply, it was a matter of law that the supply was one of medical services and not of drugs as such. Likewise, in College of Estate Management , it was also a matter of law that the supply was one of educational services and not of the printed materials as such. It is perhaps worth noting that, conceptually, a supply of medical services was capable of subsuming a supply of drugs and a supply of educational services was capable of subsuming a supply of educational written material: there was no need to invent some new concept to cover all aspects of the supply. [21] Since the issue is one of law, I must make my own decision about the proper categorisation of the composite supply made by Mr Finnamore, bearing in mind that element of circumspection referred to by Lord Hoffmann if I were minded to interfere with the tribunal's decision. Before coming to that, however, I want to refer further to UK Storage . [ UK Storage Company (SW) Ltd v RCC[2013] STC 361 ] [22] In UK Storage , the tribunal identified ([2013] STC 361 (at [42])) the two well-established distinct types of single composite supply. These were accurately described in this way: ‘(1) where two or more elements or acts supplied by the taxable person are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (see Levob Verzekingen BV v Staatssecretaris van Financiën (Case C-41/04 )[2006] STC 766 ,[2005] ECR I-9433 (para 22); and (2) where one or more supplies constitute a principal supply and the other supply or supplies constitute one or more ancillary supplies which do not constitute for customers an end in themselves but a means of better enjoying the principal service supplied (see Card Protection Plan Ltd v Customs and Excise Comrs (Case C-349/96 )[1999] STC 270 ,[1999] ECR I-973 (para 30) (“ CPP ”)).' [23] In [43], the tribunal went on to consider the decision in Field Fisher Waterhouse LLP v Revenue and Customs Comrs (Case C-392/11 )[2013] STC 136 and mentioned my own decision in Byrom . The tribunal concluded that the nature of the single supply was to be found by determining the economic reason or purpose of the whole transaction from the point of view of the typical customer. This was so whichever category of single composite supply was involved. This would involve looking at what the tenant in that case would obtain as a result of the grant of the lease to him and the supplies of services linked to the leasing; and looking at whether any one of the services might be regarded an end in itself for an average tenant of premises such as those at issue. They saw that approach to be essentially the same as that taken by me in Byrom ([2006] STC 992 (at [70])) where I referred, reflecting the language of Lord Hoffmann in Dr Beynon and Partners v Customs and Excise Comrs[2005] STC 55 ,[2005] 1 WLR 86 (at [31]), to the 'description which reflects the economic and social reality' of a single supply and considers it from the point of view of the recipient of the services. I agree with the Tribunal's conclusion and agree also that the words it uses are essentially what I was saying in Byrom . [24] A more detailed exegesis can be found in Middle Temple . The entirety of the section from [28] to [59] repays reading. This section is primarily directed at the question whether there is a single composite supply and not directly at the correct categorisation of the supply, if a single composite supply is established. These two aspects are, of course, very closely connected. Accordingly, what the tribunal says about the correct approach to the first aspect informs the correct approach to the second. At [60], the tribunal summarised the key principles relating to the first aspect, that is to say for determining whether a particular transaction should be regarded as a single composite supply or as several independent supplies. Certain of those stated principles are apposite also to the second aspect, that is to say for determining the correct classification of the single composite supply. Thus in relation to that second aspect, it is possible to derive the following principles to be applied in conjunction with those explained in Byrom : (a) The essential features or characteristic elements of the transaction must be examined in order to determine whether, from the point of view of a typical consumer, the supplies constitute several distinct principal supplies or a single economic supply. Those same features and characteristics will inform the answer to what is the nature of the single supply, from the point of view of a typical customer, in a case where the conclusion is that there is a single supply. (b) Where one or more elements are to be regarded as constituting the principal services, while one or more elements are to be regarded as ancillary services, the overarching supply will take the tax treatment of the principal element. (c) A service must be regarded as ancillary if it does not constitute for the customer an aim in itself, but is a means of better enjoying the principal service supplied. (d) A single supply consisting of several elements is not automatically similar to the supply of those elements separately and so different tax treatment does not necessarily offend the principle of fiscal neutrality.”
“[28] In ascertaining the correct description of the single composite supply, in order to establish whether it is an exempt supply, it is necessary, in accordance with the principles I have discussed, to take proper account of all the circumstances and to assess the matter from the perspective of a typical user of the plot and the storage facilities. Thus it is possible to arrive at a description which reflects 'the economic and social reality' of the supply. Those words come from Lord Hoffmann in Dr Beynon . They are portmanteau words designed, I think, to capture all the surrounding circumstances, including the commercial imperatives of the customer; I use them in that sense below.”
“[70] … it is then necessary to categorise the resulting single supply viewed as a complex of elements (the provision of the licence and of the various services). In my judgment, the over-arching single supply is not to be treated as a supply of a licence to occupy land. The description which reflects economic and social reality is a supply of massage parlour services, one element of which is the provision of the room. That, in my judgment, is the correct conclusion even if, which for my part I think probably is the case, the provision of the room was, to the masseuse, the single most important element of the overall supply and, indeed, one predominating over the other elements taken together. This is a case where the tax treatment of the supply is self-evident once it is established that the other service elements are not ancillary to the provision of the licence.”