TC09528 - [2025] UKFTT 00564 (TC)

On this point we considered HMRC may have read more into the CJEU’s judgment than is merited by the wording. The court said that to be within Item 7, the admission fee should give “all those who pay it the right collectively to enjoy” the services. HMRC submitted that it followed that we should discount any element of enjoyment that is attributable to the people outside the fence (in the “paddock”), because these are not paying customers. According to HMRC, Ingliston’s supplies differ in this respect from a concert, cinema or theme park, where only customers share in the collective enjoyment, and family and friends do not stand outside to watch customers enjoying the attractions on offer.

We do not accept that the requirement for the admission fee to give “all those who pay it the right collectively to enjoy” the services means that the collective enjoyment must derive solely from paying customers. Presumably those who pay to take part in a driving experience hope to obtain more enjoyment than those who are merely observers, but in our view the presence of observers can heighten the collective enjoyment of the paying customers.

The position is complicated by the fact that some of people in the paddock are non-paying observers, but others are customers who are not driving at that particular time, and others will have arrived without a ticket but, on seeing the driving experiences on offer, decide to pay to participate. The CJEU’s judgment in Erotic Center provides no guidance on how to treat, for these purposes, enjoyment by people who have paid an admission fee but who are not exercising their right of admission at any given time.

In case we are wrong on this analysis we find, in any event, that for the reasons we have already given, the subset of customers who, at any one time, are driving or being driven in a car, are experiencing collective enjoyment as a group. This collective enjoyment is heightened by the presence of observers in the paddock, but it is not dependent on it.

We accept that in this respect, Ingliston’s supplies are different from those of a concert, cinema or theme park, in that family and friends do not wait around outside the gates of a concert, cinema or theme park, and even if they did it is unlikely that this would be an inherently enjoyable experience. However, the question is not whether Ingliston’s supplies are identical to those of the attractions listed in Item 7; rather it is whether they share the common features identified by the CJEU in Erotic Center, and in this respect we find that they do.