Meaning of "available to the public generally"

Meaning of "available to the public generally"

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I'm looking at the provision of sports facilities by an employer to employees.

http://www.hmrc.gov.uk/manuals/eimanual/eim21827.htm

I've gone back to ITEPA 2003 s.261-2.

The benefit is exempt from charge if the facilities are "not available to members of the public generally."

Obviously, this means if Employer A runs Joe's Gym which anyone can use, and employees can use for free, this is not a tax-free benefit.

What if Employer A runs Joe's Gym which is just for employees use, but also rents it out to Bob the Fitness Instructor, and Tanya the Yoga instructor, i.e. other businesses, who may or may not allow the general public to attend their classes? Is that stretching it a bit?

Also, how does one look for case law on things? Is there a resource somewhere where we can look up case law by topic to see what's come up?

Replies (2)

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By George Attazder
11th Feb 2012 09:05

That's an interesting question.

I don't think you'll find case law, although I could be wrong.  There's little difficulty in the phrase; we know what "availability" means, and who "the public" are with regard to an employer.  "Generally" essentially means that anybody (with certain exceptions, ie children, for example) can come along and use it if they wish.

It's interesting though that HMRC interpret the requirement that something is "available generally to the employees" as meaning that the something must be available to all of them.

That leads to the interpretation that "available to the public generally" must mean that it's available to all of them!

For Tanya's clients though, I'd argue that the gym facilities aren't available to them at all.  Tanya's just using space at the gym to teach yoga.

Bob gives you more difficulty (that's what Bobs tend to do), but I'd agree that the only members of the public that have the gym available to them are the ones that are Bob's clients.  That's not available to the public generally.

For case law sources in this sort of situation, you would need to use a more expensive tool, like LexisNexis Online.  I just did a case law search using the words available, public and generally as my search terms though, and got no results.

Thanks (1)
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By Monsoon
21st Feb 2012 15:07

Thanks Mr AtAsda :)

Thanks George, that's very useful. I agree with you, in that neither Tanya nor Bob make the facilities available to the public "generally" and it's really good to hear you say that.

Basically what I am after is a way to have a employer-provided facility that's not a BIK, but the ability for the business to make some money off it to recoup some costs, without falling foul of this clause. I see possibilities... ;-)

I have a CCH online subscription so will see if that has any case law that's searchable. I keep forgetting about that very valuable resource...!

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