The CJEU has produced a satisfactory decision in the case of Brockenhurst College (C-699/15), which relates to the VAT treatment of certain ancillary supplies made by an education provider.
This arose from charges made to participants other than the students themselves, but which gave students the opportunity to practice, improve, and show-case their acquired skills. The examples were charges for meals at the catering college, which had been prepared and served by students, and tickets to school plays and concerts performed by students. The question was whether these were taxable, since the consumers were not students, and the consumers were not educated; or whether they were exempt, because the purpose of the purchase was to further the education of the students (and therefore was ‘closely related’ to an education supply).
Oddly, both the First Tier and Upper Tribunals had accepted that these supplies were exempt as ‘closely related’ supplies, but nonetheless the Court of Appeal referred the point to the CJEU for a determination. This appeared to be a surprising decision relating to a point that the UK courts ought to be able to settle for themselves. The CJEU nonetheless has endorsed both tribunal decisions, in effect, by agreeing that the charges are exempt. That said, the Advocate General had caused a scare by opining that the supplies were taxable, but her opinion is now irrelevant and does not merit further analysis.
The Court looked at the meaning of ‘closely related’ and held that this was the same as ‘ancillary’. Such a supply is regarded as not creating an end in itself, but only supporting the principal supply of education. There was nothing in the legislation that required the ancillary supply to be made, physically, to the student. It could be made to a third party as long as it was for the purpose of enhancing the student’s education, and did not generate extra financial resources, or fulfilled any separate function. This principle was subject only to the question of whether it created unfair competition (‘fiscal neutrality’).
The Court reviewed the facts and noted that the customers were always associated with students or the college, and general admission of the public did not arise. The catering, or theatrical performance, was only of a student standard, and the main objective was to challenge and stretch the students rather than to present the best show or meal to the consumer. These priorities were far removed from the commercial equivalents which are intended to benefit only the consumer. The Court was therefore satisfied that there was no unfair competition involved.
The Court also noted that the charges were at 80% of cost, which means that the activity was not intended to raise funds in and of itself. The activity would only proceed if there were enough attendees, which was untypical of any catering supply or commercial performance supply.
The last question was whether these supplies enhanced the education supply to the student, such that their education would be poorer if these supplies were not made. The Court did not hesitate to find that this was indeed the case, or that it was the supplier’s genuine view that it was. There was only one motive or purpose in these supplies, and this was to educate the students. The exempt treatment was therefore confirmed.
Given the risks of referring such basic principles to the CJEU, this was a happy outcome.
Graham Elliott is CTG’s Technical Adviser.