“In this case, while the Access Card itself is a physical item, there is no transfer of a whole property in goods. Paragraph 8 of the terms and conditions published by you at www.accesscard.online/legal/terms/ state that the card remains your property. In addition, while your customers can utilise the NOS Earlier in the letter it refers to the Nimbus Operating System (“NOS”), which enables cardholders to book online for events. , a transfer of ownership of the software platform does not take place. As transfer of the whole property of supplies being made does not take place, the supplies of the Access Cards and access to the NOS do not qualify to be treated as supplies of goods. That being the case, they must be treated as supplies of services. Paragraph 2(g), Group 12, Schedule 8, VATA1994 cannot, therefore, apply to your supplies of the Access Card and access to the NOS as they constitute supplies of services, not of goods. The distinction between goods and services is I believe why Officer Feenan put emphasis on the wording ‘appliances and equipment’. Your arguments In the review request, your advisor refers to a tribunal decision in “Lansyst Systems Limited”
“‘Supply of goods’ shall mean the transfer of the right to dispose of tangible property as owner.”
“5 Meaning of supply: alteration by Treasury order (1) Schedule 4 shall apply for determining what is, or is to be treated as, a supply of goods or a supply of services. (2) Subject to any provision made by that Schedule and to Treasury orders under subsections (3) to (6) below— (a) “supply” in this Act includes all forms of supply, but not anything done otherwise than for a consideration; (b) anything which is not a supply of goods but is done for a consideration (including, if so done, the granting, assignment or surrender of any right) is a supply of services.” (a) “supply” in this Act includes all forms of supply, but not anything done otherwise than for a consideration; (b) anything which is not a supply of goods but is done for a consideration (including, if so done, the granting, assignment or surrender of any right) is a supply of services.”
“The burden of proof is on Nimbus, as appellant. If Nimbus is unsuccessful on their primary argument, because of para. 8 of the T&Cs, what if any evidence has been adduced to show that it was let on hire? (Judge Blackwell notes that the then current terms and conditions have not been provided by Nimbus) What is a supply of services of letting on hire of goods and why is such definition met (or otherwise)?”
“The Respondents acknowledge that the burden of proof rests with Nimbus concerning goods that may have been let on hire. It is the Respondents' understanding that no evidence has been provided thus far in relation to this point. Notice 701/7 explains that the sale or hire of qualifying goods is eligible for VAT relief if they are included within paragraphs 4.2 - 4.11 of the notice.”
“12. ‘Letting on hire’ is not defined in VAT legislation and therefore one has to give the words their ordinary meaning. 13. “Hire” is defined as to “allow something to be used temporarily in return for payment” (Oxford English Dictionary); “letting” is defined as to allow something to happen. 14. Given the then extant T&C’s allowed for the disabled person to be provided with the Access Card in return for payment, but it did not become their property, the only reasonable interpretation is that the T&C’s allowed for the letting on hire of the Access Card.”
“[1] The first sort of bailment is, a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcote’s case. [2] The second sort is, when goods or chattels that are useful, are lent to a friend gratis, to be used by him; and this is called commodatum, because the thing is to be restored in specie. [3] The third sort is, when goods are left with the bailee to be used by him for hire; this is called locatio et conductio, and the lender is called locator, and the borrower conductor. [4] The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor; and this is called in Latin vadium, and in English a pawn or a pledge. [5] The fifth sort is when goods or chattels are delivered to be carried, or something is to be done about them for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. [6] The sixth sort is when there is a delivery of goods or chattels to somebody, who is to carry them, or do something about them gratis, without any reward for such his work or carriage, which is this present case.”
“when goods are left with the bailee to be used by him for hire.”