House of Lords
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Commissioners of Customs and Excise v Plantiflor Limited
HOUSE OF LORDS
Lord Slynn of Hadley Lord Mackay of Clashfern Lord Hobhouse of Wood-borough Lord Millett Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
ON 25 JULY 2002
 UKHL 33
LORD SLYNN OF HADLEY
1. Miss Brierley ordered some bulbs from "Bakker Holland", the name under which Plantiflor Ltd trades in the United Kingdom. She received an "invoice" dated 5 September 1996. The invoice specified that the price of the goods she had ordered was £52.00. There were other charges of £2.50 ("Postage (£1.63) plus packing (£0.87)") and £0.25 transport insurance. The total was thus £54.75. The invoice acknowledged that she had already paid this sum. The total VAT was stated to be "£53.12 17.50% = £7.91". The difference between £53.12 and £54.75 is £1.63, the postage charged. Thus no VAT was charged on the postage. The commissioners however say that VAT was chargeable to Plantiflor on the postage. Plantiflor says it was not. Accordingly, Miss Brierley's order was taken as a particular assessment to test the practice of the Commissioners in respect of many thousands of mail orders.
2. Mr P M F Horsfield QC, the chairman of the London VAT and Duties Tribunal, allowed Plantiflor's appeal and held that VAT was not payable by Plantiflor on the postage. Laws J held that it was and reversed Mr Horsfield. The Court of Appeal held that it was not and so reversed Laws J. The commissioners have now appealed to your Lordships. Miss Brierley would no doubt be surprised that what seemed a simple transaction should have led to such complex arguments and different decisions. That, however, seems to be inherent in the administration of the VAT system.
3. The basis of that system is to be found in the Sixth Council Directive of 17 May 1977 (77/338/EEC) as subsequently amended and as applied to the United Kingdom by the Value Added Tax 1994 and Orders in Council made pursuant to it. It is accepted for present purposes that the United Kingdom legislation is in accordance with the Community Directives.
4. By article 2 of the Sixth Directive "the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such" shall be subject to value added tax, a tax not on profits but on turnover. The supply of goods means "the transfer of the right to dispose of tangible property as owner" (article 5) and the supply of services means any transaction which does not constitute a supply of goods within the meaning of article 5: article 6.
5. By article 11(A)(1)(a) the taxable amount is to be, subject to exceptions, "everything which constitutes the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies". By article 11(A)(2) the taxable amount shall include "(b) incidental expenses such as commission, packing, transport and insurance costs charged by the supplier to the purchaser or customer."
6. By article 11(A)(3):
7. By article 13(A)(1)(a) member states are required to exempt from VAT "the supply by the public postal services of services other than passenger transport and telecommunication, services, and the supply of goods incidental thereto". By section 31 of, and Group 3 of Schedule 9 to, the 1994 Act "the conveyance of postal packets by the Post Office" and "the supply by the Post Office of any services in connection with [such] conveyance" were made exempt from VAT.
8. By section 19 (2) of the 1994 Act:
9. The contract between Plantiflor and its customers is to be found in a page in Plantiflor's catalogue and the order form filled in by the customer together perhaps with the invoice. The catalogue under the heading "Convenience of Delivery to Your Door" states:
Under the heading "Collection and Delivery":
10. The order form in the present case on the front side contains spaces to indicate (a) "Total Order Value", (b) "Goods in Transit Insurance (Cross out if not required) 0.25p" and (c) "Contribution Towards Post and Packing £2.50" and (d) "Final Total". On the reverse side the customer was told that if some goods were to be sent in advance "Please add an extra £2.50 postage and packing charges".
11. Plantiflor is the subsidiary of a Dutch company and the group operates widely in Europe selling directly to the public. Customers can collect the goods ordered from Plantiflor in Spalding or in the Netherlands though very few customers do so and then it seems only from Spalding. When orders are received in Spalding either by post or telephone they are forwarded to Holland where the goods are packed and sent by lorry to the United Kingdom. On arrival in the United Kingdom parcels go direct to Royal Mail Parcelforce, at the time a section of the Post Office. They are then delivered by Parcelforce. In 1995 some 475,500 orders were made by Plantifor's customers, the average price being £22.11. Something in the order of £2,000 worth of goods are sent by trailer each week from Holland to the United Kingdom.
12. Plantiflor entered into a contract with Parcelforce on 6 January 1994 in relation to the carriage of Plantiflor's products, the contract to remain in operation from 1 August 1993 until 31 August 1998. The agreement recited that "Plantiflor has agreed to send a certain number of items and Parcelforce has agreed to deliver them for Plantiflor at the prices set out below". Plantiflor's obligation was to send a minimum of 400,000 parcels a year, with an average weight of 3.4 kgs. For the first four years Plantiflor was to "use Parcelforce for the dispatch and delivery of 100% of its parcels traffic". In the fifth year Plantiflor could use another carrier for a maximum of 5% of its total parcels traffic.
13. In the first year, "Parcelforce will charge Plantiflor at a rate of £1.45 per parcel with a rate of £1.35 to commence with the introduction of bar-coded Plantiflor parcels scanned at collection and delivery." Thereafter the charges were to be varied as provided at the beginning of each year of the agreement. Plantiflor "shall pay invoices submitted to Parcelforce by means of direct debit transfer". The parcels were to be delivered to Parcelforce at Peterborough for onward transmission. Parcelforce undertook that 95% of the parcels dispatched would be delivered on or before the third working day after dispatch.
14. On 21 September 1993 Plantiflor told Parcelforce that in Holland and Germany no VAT was charged on postage. This was on the basis that "providing we charge the customer the actual value of the postage paid to the PTT and that all contracts state clearly that we are receiving postage, and posting parcels on their behalf, we will no longer be the contract principal, merely the customers' agent". Plantiflor therefore proposed that Parcelforce should confirm that it delivered parcels "(a) for us as principal and (b) as agent of our retail customers".
15. Plantiflor on 7 March 1994 told the commissioners that they intended no longer to pay VAT on the postal charge and they asked for the commissioners' acceptance of this.
16. By letter of 8 August 1994 the Commissioners replied that it might be possible to treat the postage as a disbursement but only if the customer knew
17. Plantiflor replied that the customer knew the charges of £1.49 (previously £1.45) which was disclosed on the invoice and that Parcelforce charged Plantiflor a flat rate of £1.49 per parcel. By letter of 29 September 1994 Customs and Excise accepted that postage should be treated as a disbursement but on 9 May 1996 they said that they had been advised and had decided that
18. On 23 August 1996 the Post Office told the commissioners that it considered that the Post Office services were provided to the mail order company with whom it had a contract.
19. My Lords, it is clear that under the contract Plantiflor is to supply the goods packed and, if required, insured for the transport. A principal feature of its marketing is the "Convenience of Delivery to Your Door" that is really why "You'll Enjoy Ordering from Bakker" and the catalogue states "Bakker deliver every order, whether large or small, direct to your home". It is equally made clear that Plantiflor is not undertaking and does not intend to deliver the goods itself. What it is undertaking is to ensure that the goods are delivered. It will do this by arranging delivery via Royal Mail Parcelforce if so requested. The total payable for all this is in the present case £54.75. The sole question raised on this appeal is whether the "Postage (£1.63)" or that part of the "Contribution Towards Post and Packing £2.50" which relates to the postage cost is part of the consideration moving from the customer to Plantiflor for the relevant supply or whether it constitutes money handed to Plantiflor which is not part of that consideration.
20. From the calculation of the VAT on the invoice it seems to have been accepted that VAT was payable on transport insurance. If Plantiflor acted as insurers that would clearly be the position. If, as seems more likely, Plantiflor merely undertook to arrange insurance then the position would seem to be analogous to the present question though the matter has not been gone into in argument. If VAT was payable on the arrangement for insurance it may follow that it was also payable in respect of the arrangement for transport.
21. Plantiflor's case relating to the transport in essence is that it made arrangements in September 1993 to act as agent for its customers and that it would receive the postage and pass it on to Parcelforce as such agent and that all services rendered by Parcelforce were rendered as principal to the customer. The consideration of £1.63 in fact moved from the customer to Parcelforce.
22. The Court of Appeal considered that the commissioners had conceded that there were two suppliesone of the sale of goods by Plantiflor and one of the service of arranging delivery of the goods via Parcelforce. There was also a supply of services by Parcelforce to the customer in the actual delivery of the goods. The judge thought this "concession" right. The Court of Appeal refused to allow the commissioners to go back on the concession and to argue that there was only one integral supply of the sale of delivered plants and that even if the delivery by Parcelforce was a supply by Parcelforce to the customer that there was still a supply of services by Parcelforce to the plaintiffs. The court, however, went on to say that these two arguments were in any event wrong, and to explain that delivery was quite separate from the sale and there were two supplies as the tribunal had accepted.
23. If, as I considered in Customs and Excise Comrs v British Telecommunications plc  1WLR 1376, 1382 - 1383, and as I still consider, the appropriate question is whether one act (here arranging the delivery) is "ancillary or incidental to another" (here the supply of bulbs) or is "a distinct supply", it seems to me on the contractual documents between Plantiflor and the customer which are before the House that these arrangements constituted a single supply. What the customer wanted and what Plantiflor agreed to provide was bulbs delivered to the home.
24. There was a separate supply consisting of the delivery of the bulbs from Plantiflor to Parcelforce, under a distinct contract. However, under the contract between the customer and Plantiflor arranging the delivery is ancillary to the making available of the bulbs. I do not consider that the answer to this question will vary according to, or depend on, the precise event or time when as a matter of English contract law the property in the bulbs passed to the customer. The reality is that Miss Brierley paid one total sum for one supply of delivered bulbs.
25. On the basis, however, that in the contractual documents between Plantiflor and its customer properly construed there were two supplies, the question arises whether the money received by Plantiflor for postage can constitute consideration received by Plantiflor or whether it is simply money that is channelled through Plantiflor but never became Plantiflor's property so that it cannot amount to consideration passing to Plantiflor.
26. It is contended by Plantiflor that there was no supply by Plantiflor to the customer in return for the postage. Properly analysed, Plantiflor was acting as agent for its customer and the only consideration received by Parcelforce (£1.63) for the only thing it did (delivering the parcels) was received from the customer. No consideration passed between the customer and Plantiflor for the delivery because Plantiflor did not deliver the goods and there was no consideration paid either in the postage charge or in the handling charge or in the price of the bulbs for arranging the delivery by Parcelforce.
27. As to the agency argument Plantiflor of course relies on the provision of the catalogue "We will . . . arrange delivery on your behalf. . . We will then advance all postage charges to Royal Mail on your behalf." They insist that for this reason no consideration moved from Plantiflor to Parcelforce.
28. The tribunal  V & DR 301, 322 accepted that "the role of Plantiflor in relation to delivery was that of agent or other intermediary"
29. This conclusion however does not take into account the terms of the agreement between Plantiflor and Parcelforce. It is plain from the terms of that agreement to which I have referred that Parcelforce was to deliver parcels "for Plantiflor". Parcelforce was to "charge Plantiflor" and Parcelforce was to pay invoices from Parcelforce by direct debit transfer. There is nothing in that agreement to express or even indicate that the two contracting parties were not acting as principals, in other words that Plantiflor was acting as agent for its customers. There is no link between Parcelforce and the customer. Since all that Parcelforce knew was the name of the addressee on the parcel (or perhaps even only the address), it might well not know the identity of the customer. Plantiflor agreed to pay postal charges; Plantiflor and not the customer was liable to pay Parcelforce. Even though Parcelforce supplied the service for delivery of the goods there was no consideration passing from the customer to Parcelforce. Plantiflor agreed to arrange delivery including paying Parcelforce for the postage and the customer paid Plantiflor for that.
30. It seems to me that looking at the written terms of both contracts (Plantiflor and its customer: Plantiflor and Parcelforce) it is not shown that this £1.63 or any other of the 400,000 sums of £1.63 became on payment to Plantiflor the property of Parcelforce. They are not sums earmarked for Parcelforce. They are part of the receipts by Plantiflor as part of its turnover. The fact that by a direct debit mechanism Plantiflor must pay Parcelforce the total sum of £1.63 times the number of parcels delivered in any period does not convert the specific payment by the customer to Plantiflor into a payment to or on behalf of Parcelforce. This may not be exactly the same as the case where, eg a builder agrees to do work for which he will have to procure materials, the cost of which is part of the eventual price but it is sufficiently near to require an analogous result as Laws J thought. The analogy is perhaps nearer if the contract includes the provision of a particular item (a tap) which the builder is to obtain from a particular supplier at a known price for which the builder pays in advance and which is included in the overall charge for the work, unless it is shown that under article 11(A)(3)(c) of the Sixth Directive the price of the tap is repayment of an expense "paid out in the name and for the account of the [customer] and which [is] entered in his books in a suspense account".
31. In the present case it is not possible to say that £1.63 was paid out "in the name and for the account of the customer" even if the moneys here can be treated as entered in Plantiflor's books as a separate account. Even if, by the time Parcelforce got the periodic direct credit for all parcels delivered during the relevant period, it knew the name and address of the customers from the parcels or even from a list, it would not be sufficient to constitute each part of the global direct debit or credit as being in the name or for the account of the individual customer.
32. It is clear from Customs and Excise Comrs v Redrow Group plc  1 WLR 408 that one set of acts can constitute two different supplies of services. There it was to be found in the work of the estate agent in connection with the marketing of the existing home of the potential purchaser of a new Redrow home as well as selling the Redrow home. The House held that what was done was a supply of services to Redrow as well as to the owner. Lord Millett said, a pp 418-419:
33. In the judgments of the courts below there are citations from earlier cases on the one hand cases like Glawe (HJ) case 38/93  STC 543  ECR I - 1679, Fischer v Finanzant Donaueschingen [case C-283/95]  STC 708 and Customs and Excise Comrs v First National Bank of Chicago [case C-172/96]  STC 850 dealing with exchange control or gaming machine transactions. These seem to me to be in a special category. I do not think that they give direct assistance in the present case. Nell Gwynn House Maintenance Fund Trustees v Customs and Excise Comrs  STC 79 indicates clearly that a distinction may have to be drawn between a situation where a person supplies a product or service by himself or by his sub-contractor and the situation where a person agrees to arrange for the supply of that product or service. In this case it was the latter
34. For the reasons already given I would hold that VAT is payable in the sum of £1.63 in respect of postage and I would allow the appeal.
LORD MACKAY OF CLASHFERN
35. Plantiflor supplies goods and services to its customers. No question arises with regard to the supply of goods. So far as the supply of services is concerned what Plantiflor has agreed to do in respect of the consideration of £2.50 paid by the customer to Plantiflor is to arrange that the goods in question will be delivered by Parcelforce to the customer or to his order, the goods having been packed and delivered by Plantiflor to the relevant Parcelforce depot. It is agreed that the charge by Parcelforce for the delivery by them to the customer or to his order is £1.63 and the charge for packing and delivering the goods to the relevant Parcelforce depot and making the arrangements for their transmission by Parcelforce to the customer or to his order is 87p.
36. The service of delivery is optional. By the time the question of delivery arises the goods are agreed to have become the property of the customer and therefore can only be moved or delivered to Parcelforce with the customer's authority. The arrangements for payment to Parcelforce are contained in their contract with Plantiflor and there is provision for regular accounting. If there were default by Plantiflor in payment to Parcelforce it is clear in my opinion that the customer who has paid in advance to Plantiflor would not be liable to Parcelforce for the cost of the postage. On the other hand it is clear that the intention of the transaction is that the payment made by the customer to Plantiflor included the payment for the sum which Parcelforce requires as the consideration for its delivery of the goods to the customer or to his order. The value added tax tribunal was satisfied on the evidence that the supplier of the delivery service was not Plantiflor but Parcelforce. The tribunal makes it clear that this delivery supply extended from the time the goods had been placed in the hands of Parcelforce to the time the goods reached the customer or the person to whom the customer directed them to be supplied  V & DR 301, 322, finding 7.1(1). Accordingly Plantiflor was not entitled to charge for this supply, the charge for this supply was due to Parcelforce and Plantiflor acted purely as an intermediary, its supply being, as I have said, completed when it handed over the goods to Parcelforce so that they might deliver them to the customer or to his order.
37. I respectfully agree with my noble and learned friend Lord Slynn of Hadley in Customs and Excise Comrs v British Telecommunications plc  1 WLR 1376, 1380 where he said:
This passage was agreed to by all the other members of your Lordships' House that took part in that decision. Accordingly the first question is to identify the supply and then on the facts ascertained to decide what was the consideration given for the supply in question.
38. In my opinion on the facts found in the present case by the Tribunal the supply of delivery of the goods by Parcelforce to the customer or to his order was not part of the supply which Plantiflor gave to the customer. That supply was completed when the packed goods were handed by Plantiflor to Parcelforce for delivery and the payment for it was made. The tribunal found as a fact that the consideration for that supply was included in the purchase price of the goods plus the 87p for the packaging cost.  V & DR 301, 323, finding 7.1(5). The £1.63 was not payment to any extent for the supply that Plantiflor gave to the customer. It was entirely devoted to the payment of the service supplied by Parcelforce to the customer.
39. I accept that the arrangements were not arrangements for Plantiflor to be an agent of the customer to make payment to Parcelforce. The customer incurred no liability to Parcelforce in the event of default by Plantiflor to satisfy the payment arrangements which it had negotiated with Parcelforce. The invoice for the transaction made it plain that the intention of the parties was that the £1.63 should be the payment to Parcelforce for its service. In my opinion therefore in accordance with the view of Lord Slynn to which I have already referred article 11(A) has no part to play in identifying the supply which Plantiflor made to the customer. Once it is clear that Plantiflor did not give to the customer the service of delivery of the goods to the customer or to his order the money which Plantiflor received must be divided between the supply which Plantiflor gave to the customer and the supply which Parcelforce gave to the customer, and the appropriate apportionment was 87p for the supply that Plantiflor gave and £1.63 for the supply Parcelforce gave.