VAT: The English Bridge Union Ltd – Advocate General Opinion

VAT: The English Bridge Union Ltd

The AG is of the opinion that sport does not require a physical element and that duplicate contract bridge is a ‘sport’ within the meaning of Article 132(1)(m).

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This UK reference concerns the scope of exemption for sport under Article 132(1)(m) of the VAT Directive. This exempts: “(m) The supply of certain services closely linked to sport or physical education by non-profit making organisations to persons taking part in sport or physical education.” The taxpayer is arguing that HMRC has incorrectly restricted the meaning of sport to something which involves physical activity or physical fitness. The taxpayer lost at the First-tier Tribunal (FTT) and the Upper Tribunal (UT) referred the case to the CJEU on appeal. The Advocate General (AG) is of the view that sport does not require a physical element and that contract bridge is a sport.

The AG noted that the term sport is not defined in the Directive. The AG also noted that the exemption refers to ‘sport or physical education’. The UK and Commission’s argument is that this implies a sport has a physical requirement, but the AG was not persuaded by this. In the AG’s view this means the two are related but this does not mean the aim of the exemption was to exclude activities with no physical element. Having looked at a number of definitions the AG set out what activities, commonly referred to as sport, have in common:

  • They require a certain effort to overcome a challenge or an obstacle (i.e. they are not purely recreational), whether that challenge is competition against an opponent or the surpassing of individual physical or mental limits;
  • The overcoming of these challenges or obstacles (i) trains a certain physical or mental skill and (ii) thereby yields benefits for the physical or mental wellbeing of the persons engaging in the sport;
  • Such activities are usually practised not solely in a purely commercial context; and
  • (Local) public perception or international recognition serve as an indication pointing to the existence of a ‘sport’.

In summary the AG considers ‘sport’, within the meaning of the Directive, needs to be understood as meaning the training of mental or physical fitness in a way that is generally beneficial to the health and the well-being of citizens.

In conclusion, the AG’s proposed response is that it is not necessary for there to be a (not insignificant) physical element for the supply to fall under Article 132(1)(m). A significant mental element which is material to the outcome is sufficient. Turning specifically to duplicate contract bridge, whilst this is left to the referring court, it is clear from the Opinion that the AG would consider it to be a sport as mental skill and fitness rather than just chance is crucial to a successful outcome.

To access the Opinion click here.

The Court’s final judgment is expected later in the year. For the earlier UT decision click here.

For further information please contact:

Karen Killington

Steve Powell

 

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