TC09528 - [2025] UKFTT 00564 (TC)

Mr Hayes submitted that Ingliston’s supplies could be considered to be similar to those of a fair or amusement park. Mr Winter responded that this was an inappropriate analogy, drawing attention to the CJEU’s definition of an “amusement park” in Phantasialand at [30], where it held that:

“the expression ‘amusement park’ denotes a landscaped site containing various facilities for recreation and amusement, whereas a ‘fair’, although, in general, also possessing the same facilities, is characterised by the fact that it takes place, albeit with a certain regularity, for a temporary period.”

HMRC submitted, and we accept, that the term “amusement park” must be interpreted uniformly throughout the EU, that a strict interpretation is appropriate, and that the term must be interpreted in accordance with everyday language.

HMRC further submitted that Ingliston’s supplies self-evidently do not fall within the meaning of an “amusement park” as defined in Phantasialand. This is particularly the case because the “facilities for recreation and amusement” described in that case are explicitly ones found in both amusement parks and fairs, ie fairground rides and the like. According to HMRC, supercars are very different from fairground rides, in that customers receive tuition from an instructor and are in a car with a small bubble of people, unlike in a rollercoaster where customers are surrounded by other people. Moreover, an amusement park has multiple attractions, whereas Ingliston does not. In an amusement park, customers wander around a large decorated area, and this is part of the attraction.

We remind ourselves that the question is not whether Ingliston’s facility is a fair or amusement park; it is common ground that it is not. The question is whether it is a “similar cultural event or facility” to any of the attractions listed in Group 16 and Item 7. If every business, to benefit from the reduced rate, had to demonstrate that it was an amusement park, fair etc, then the words “similar cultural event or facility” would have no function.

On the question of how to interpret, in a VAT context, whether something is “similar” to something else, we have found it helpful to have in mind the observations of the Court of Appeal in HMRC v Procter & Gamble UK [2009] EWCA Civ 407 where Lord Justice Jacob said, at [19]: “In the end it was a matter of overall impression”.

Our overall impression is that the facility provided by Ingliston is similar to a fair or amusement park. Members of the public attend Ingliston’s event days with the purpose of having an enjoyable day out. Customers buy tickets which give them access, at designated times, to a gated area in which they drive, or are driven, in “supercars” which are marketed as providing a thrilling experience. Customers derive excitement from driving, or being driven, fast in a high-powered vehicle around an off-road track. Many, or most, fair and amusement park rides share the features of speed, thrills and excitement; others (such as dodgems and go-karts) are even more similar in that customers can drive vehicles themselves.

We note that Ingliston’s facility is peripatetic. In line with the CJEU’s observations in Phantasialand, a fair would be expected to be peripatetic, but an amusement part would not. As such we consider this to be a neutral factor in the question of whether Ingliston’s facility is similar to a fair or amusement park.

HMRC drew attention to what was said in Young Driver at [55] and [56] on the subject of whether the appellant business in that case was offering an experience that was similar to a circus or fair. At [55], the Tribunal contrasted a circus or fair, which has a range of attractions around which customers are free to wander, with the appellant business, which offered a specific pre-booked experience in a fenced off area. At [56], as described above, the Tribunal rejected an argument that the experiences supplied by the appellant in that case were comparable with a dodgem car ride.

We have already found that the supplies made by Ingliston are different from the supplies made by the appellant in Young Driver. This means that even if (which is not the case) we were bound by the decision in Young Driver, the comparison made by the Tribunal in that case between the appellant business and the attractions specified in Group 16, is not the same as the comparison we must make between Ingliston’s business and those same attractions.

We accept that a fair or amusement park has multiple attractions, whereas Ingliston does not. Mr Hayes drew attention, in this context, to the different experiences sold by his business such as the two-seaters versus four-seaters, extra laps and so on, but we agree with HMRC that this is not the same as the multiple attractions in a large area provided by an amusement park.

Again, however, to succeed in this appeal Mr Hayes does not have to demonstrate that Ingliston’s facility is a fair or amusement park. What we must decide is whether Ingliston provides a facility that is similar to a fair or amusement park, interpreting that term strictly and in accordance with everyday language. In our view, for the reasons we have given, the answer is yes.