TC09528 - [2025] UKFTT 00564 (TC)

We accept that the attractions listed in Group 16 and Item 7 have in common the feature that one would expect them to be attended by a relatively large number of people at any one time. This also follows, as HMRC submit, from the CJEU’s use in Erotic Center, at [17], of the words “public”, “all” and “collectively”.

The law does not prescribe the minimum number of people that will suffice for these purposes, and HMRC have not suggested a number. Instead they point to the number of customers in each car: normally one (in the case of the 16 two-seaters), but sometimes up to three (in the case of the two four-seaters). This, HMRC submit, is not a relatively large number of people akin to those at a concert, fairground, exhibition etc.

We have already found that in the case of the driving experiences offered by Ingliston, customers in cars are experiencing enjoyment collectively with other customers in cars. When determining the number of people experiencing collective enjoyment for these purposes, we do not accept that the correct approach is to look at the occupants of a single car. This is to treat a car in the same way as one of the private cubicles in Erotic Center, which we have already found is not an appropriate analogy.

At one of Ingliston’s event days, the average number of cars driving at any one time is 12. Therefore, even if all 12 are two-seaters, there will be 12 customers in these cars. There are 18 cars in total, normally carrying (in the 16 two-seaters and two four-seaters) a total of 22 customers: this indicates that there are normally 22 customers inside the gated area, some of whom will be driving and some of whom will be stationary in the pitlane.

We did not accept, as HMRC submitted, that “collective” imports a requirement for the enjoyment to be “simultaneous”. We accept that, to be collective, the enjoyment must be within the same timeframe, but “simultaneous” appears to add an additional requirement above that envisaged by the CJEU in Erotic Center.

In the case of Ingliston, on a typical event day there may be around 200 pre-booked customers. In our view, 200 customers in a day is clearly a large enough number to meet the requirement for an attraction to be similar to those listed in Group 16 and Item 7. Even if we were to accept HMRC’s submission that the enjoyment must be simultaneous, we would find that simultaneous enjoyment by 12 customers is sufficient to meet the CJEU’s description of an attraction that is available to the “public”, giving “all” who pay the admission fee the right “collectively” to enjoy the facility.