Gap Group Limited v The Commissioners for HMRC

Decision date: 2 November 2023

Neutral citation: [2023] UKFTT 970 (TC)

Overall AI summary confidence: high

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Short overview

This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.

AI confidence in this short overview: high

This case concerned whether GAP Group's provision of plant with red diesel and subsequent invoicing for fuel shortfalls were separate VAT supplies or a single composite, and if single whether the fuel element could attract a reduced rate. The First-tier Tribunal found the plant hire and fuel were multiple, independent supplies because customers had a genuine choice to return equipment with or without fuel and fuel was separately identified and invoiced on termination. The Tribunal also rejected GAP’s fallback that, if a single supply, the fuel element would qualify for a reduced rate.

Ratio decidendi

This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.

AI confidence in this ratio decidendi summary: high

Where a customer has a real, practical freedom to obtain fuel separately (manifested by the option to return hired plant with or without fuel) and the charge for fuel is separately identified and invoiced when the customer elects not to refill, the elements support characterising the transactions as independent supplies for VAT purposes. The supply of fuel is treated as supplied at the point of the customer's election and invoicing on termination, not necessarily at the time of initial delivery.

Obiter dicta

This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.

AI confidence in this obiter dicta summary: medium

The Tribunal noted that industry custom and contractual practice (BPTAs, delivery/collection notes and rate cards) and the commercial reality that fuel sales were incidental to the hire business informed its view of economic reality. It also observed practical limitations in GAP’s management information systems, without treating those matters as determinative of the legal characterisation.