Upper Tribunal Tax and Chancery Chamber

UT/2024/000008 - [2025] UKUT 00100 (TCC)

Fecha: 27-Nov-2024

The parties’ submissions in outline

The parties’ submissions in outline

41.

We will address the parties’ arguments in more detail in our discussion below. However, in summary, their main submissions were as follows.

42.

Ms Mitrophanous KC, for HMRC, criticised the FTT’s reasoning on this issue. She made the following submissions.

(1)

The FTT erred by adopting a “high level” approach to the question of whether the services provided by Bolt were “identical or at least comparable” to services provided by tour operators. By doing so – and finding that the supplies made by Bolt were of “passenger transport” and that supplies of passenger transport were commonly provided by tour operators – the FTT failed to ask the correct question derived from the CJEU case law, which was whether the services provided by Bolt were comparable to services provided by travel agents or tour operators.

(2)

The FTT also erred in its application of its alternative rationale – that, even on a more particular approach, the supplies made by Bolt were comparable to services commonly provided by tour operators – by:

(a)

focusing on the mode of transport and in particular relying upon the opinion of the Advocate General in Madgett& Baldwin as support for a conclusion that transport by taxi fell within the special scheme;

(b)

regarding the fact that Bolt provided rides to and from places which tour operators did not typically serve as being irrelevant; and

(c)

failing to treat the on-demand nature of the supplies made by Bolt as a feature, which distinguished those supplies from supplies commonly made by tour operators.

(3)

The FTT also erred in its alternative basis for its conclusion (at FTT [113]). The additional services provided by Bolt could not bring the services provided by Bolt within the special scheme when the bulk of the services that Bolt provided (passenger transport) were not comparable with services commonly provided by tour operators.

43.

Ms Sloane KC, for Bolt, supported the FTT’s conclusions. In summary, her main submissions in response to HMRC’s arguments were as follows.

(1)

The CJEU case law shows that taxi rides can fall within the special scheme. The FTT’s “high level” approach was consistent with the case law principles which show that:

(a)

the correct touchstone is travel and a journey;

(b)

the purposes and duration of the travel service are irrelevant;

(c)

there is no requirement for a minimum distance of travel, or a cross-border element; and

(d)

there is no requirement for a travel service to be packaged with other supplies to fall within the special scheme.

(2)

The scope of the scheme is not defined by reference to supplies typically made by a “traditional” travel agent or tour operator. The arguments about the comparability of Bolt’s supplies with those of traditional travel agents and tour operators are misplaced. In any event, the evidence shows that even traditional travel agents and tour operators organize transfers by taxi or PHV.