Single and multiple supplies – Ice rink and ice skates

The Ice Rink Company Ltd & Anor [2020] TC 078929

The First-tier Tribunal (FTT), on remittal from the Upper Tribunal, reconsidered all of the relevant facts and found there were two separate supplies of standard rated admission to an ice rink and zero rated hire of children’s ice skates. Appeal allowed.

Summary

The appellants operated ice rinks. It was not in dispute customers could choose between skate-hire only, admission only (‘skating without skates’), or buy a package consisting of both skates and admission (‘skating with skates’). The supply of children’s skates was zero rated under VATA 1994, sch. 8, grp. 16 item 1. The issue was whether they could still be zero rated when supplied as part of a ‘skating with skates’ package along with admission to the rink which was standard rated.

Ice skating clearly required both access to the rink and skates. There was no question of there being a principal and an ancillary supply as in some of the previous caselaw. Instead, the FTT had to consider whether the constituent elements, as supplied to a typical customer, were so closely linked that they formed, objectively, a single indivisible supply that would be artificial to split. If the customer could choose to purchase the constituent elements separately, this would be an important factor in determining there was more than one supply. Following R & C Commrs v Honourable Society of Middle Temple [2013] BVC 1690, however, there must be a genuine freedom to choose which reflected the economic reality of the arrangements between the parties.

The UT had earlier found the FTT had previously erred in law when they interpreted the ‘typical customer’ referred to above as being a general customer of the business rather than a typical recipient of the package of supplies whose characteristics were in dispute. Further facts were now required to reconsider the decision on the proper basis. Specifically, did a recipient of the disputed package realistically have the option to purchase the individual elements separately.

HMRC argued this had to be considered when the customer was already at the counter in the rink but this was disputed by IRC. The FTT accepted IRC’s contention customers, typically, would have considered their position much earlier than this having visited their website, or spoken to friends and family, and determined the options available to them and the higher rate charged for skating with skates as opposed to skating without skates. They could then, realistically, have chosen to purchase or borrow skates before going to the rink. HMRC argued the typical consumer for this package was likely to be going to the rink for the first time, or infrequently, and it would not be financially viable to spend the money required for a new pair of skates rather than pay a little more to hire at the rink. The FTT noted that this argument disregarded the inferior quality of the hired skates as well as the ‘pester power’ of children. There were several reasons why a parent might choose the former, more expensive, option.

The FTT held the typical consumer, in this instance, would have been aware of the skate without skates option prior to visiting the rink and could have, therefore, realistically chosen this option. Accordingly, there were two separate supplies and the appeal was allowed.

Comment

The comments of the UT when this case was remitted back to the FTT provide an important clarification on the correct approach in identifying a ‘typical customer’. In particular, the much narrower interpretation required than the FTT had first adopted.

The VAT treatment of single, multiple and mixed supplies can be complex. Please contact 4 Eyes Ltd if you would like to discuss the issues arising.

 

 

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