18799
Value added tax – exemptions – cultural services – whether orchestra managed and administered on an essentially voluntary basis 

LONDON TRIBUNAL CENTRE

	BOURNEMOUTH SYMPHONY ORCHESTRA	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Dr. David Williams (Chairman)
						 Mrs S Edmondson FCA (Member)

Sitting in public in London on 12 and 13 July 2004

Kenneth Parker QC (instructed by Deloittes)
for the Appellants

Nicholas Paines QC (instructed by the Solicitor to HM Customs and Excise)
for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1	The appellant, the Bournemouth Symphony Orchestra (BSO), was founded in 1893. It is one of the United Kingdom’s major symphony orchestras, and is our oldest full-time orchestra. It is also the only major orchestra based outside a major city. It is a registered charity and is in form a company limited by guarantee. 

2	BSO claims to be entitled to exemption from VAT on its activities on the grounds that it provides:

	certain cultural services and goods closely connected thereto … by … cultural 
	bodies recognised by the member state concerned

under Article 13A(1)(n) of EC Council Directive 77/388 (the Sixth VAT Directive) and the United Kingdom laws that implement that exemption. If that claim is correct then it is entitled to a refund of VAT claimed in 2002 and totalling £152,153.15, and to an ongoing exemption. The respondents (the Commissioners) refused the claims, and the matter has been appealed to the tribunal for decision.

3	Before setting out its decision, the tribunal comments that it respects the transparent way in which BSO and its advisers and counsel put its affairs before both the Commissioners and the tribunal. The tribunal fully accepts the factual content of the written and oral evidence put before it by the chairman of the BSO Board of Directors, Colin Patrick, a solicitor, by its head of finance, Andrew Minns, FCA, and by Michael Henson, the Managing Director of the Orchestra. It records that through both their evidence and the documents produced by BSO the tribunal was given as full a picture as it needed to deal with the overall assessment of BSO’s claim. This was not an easy case to decide, but the tribunal was assisted by the clarity of both parties’ presentations of their cases. 

The law

4	The question of law is whether BSO is entitled to exemption by reason of Article 13A of the Sixth VAT Directive (exemptions for certain activities in the public interest) from the general scope of the charge to VAT imposed by article 2 on services provided by BSO. (All references are to that Directive unless otherwise stated). No other aspect of BSO’s status for VAT purposes was before the tribunal. That exemption was brought directly into United Kingdom legislation by amendments to the Value Added Tax Act 1994 (VATA) by the Value Added Tax (Cultural Services) Order 1996, SI 1996/1256. It is rightly conceded by the Commissioners that any differences in the phraseology of that Order from the phraseology of Article 13 are to be ignored. The European law clearly applies directly from its full implementation in 1990. But Article 13 reserves the right to member states to impose conditions on exemption under the article. The United Kingdom has used that right as noted below.

5	Article 13 provides as relevant:

	Article 13 	Exemptions within the territory of the country

	13A		Exemptions for certain activities in the public interest

	(1) Without prejudice to other Community provisions, member states shall 
exempt the following under conditions which they shall lay down for the purposes of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse: 

	…

(n) certain cultural services and goods closely linked thereto supplied by bodies governed by public law or by other cultural bodies recognised by the member state concerned

	…

	(2)

(a) Member states may make the granting to bodies other than those governed by public law of each exemptions provided for in (1) … (n) of this article subject in each individual case to one or more of the following conditions:

-	they shall not systematically aim to make a profit, but any profits nevertheless arising shall not be distributed, but shall be assigned to continuance or improvement of the services supplied,

	-	they shall be managed and administered on an essentially voluntary basis by persons who have no direct or indirect interest, either themselves or through intermediaries, in the results of the activities concerned,

	-	they shall charge prices approved by the public authorities or which do not exceed such approved prices or, in respect of those services not subject to approval, prices lower than those charged for similar services by commercial enterprises subject to value added tax,

	- exemption of the services concerned shall not be likely to create distortions of competition such as to place at a disadvantage commercial enterprises liable to value added tax. 

6	The relevant United Kingdom legislation is in VATA, Schedule 9, Group 13, item 2:

	The supply by an eligible body of a right of admission to –  …

	(b)	a theatrical, musical or choreographic performance of a cultural nature.

Note (2) to that Group provides that:

For the purposes of item 2 “eligible body” means any body (other than a public body) which -

	(a) is precluded from distributing and does not distribute any profit it makes,

(b) applies any profits made from supplies of a description falling within item 2 to the continuance or improvement of the facilities made available by means of the supplies, and
	
(c) is managed and administered on a voluntary basis by persons who have no direct or indirect financial interest in its activities.

This note is the exercise of the power given to the United Kingdom government by Article 13A(2) and is to be read consistently with that Article. In other words, the United Kingdom has used the power to impose limitations under the first and second indents, but not the other indents, of Article 13A(2)(a).  

7	It is common ground that BSO meets the requirements of  Note 2(a) and (b) and that the only point of dispute is the application of  Note (2)(c). 

The Zoological Society of London case

8	It is also common ground that there is only one authority to which we must turn in deciding this case:  Customs and Excise Commissioners v Zoological Society of London, Case C-267/00, [2002] STC 521. This is a decision of the European Court of Justice, assisted by Advocate General Jacobs, directly on the meaning of Article 13A(1)(n) and (2).  The High Court asked the European Court a two-part question, both parts concerned with the meaning of Article 13A(2)(a), second indent. In summary they were:

(a) what are the criteria for determining by whom a body is managed and administered for the purposes of this provision? 

(b) what are the criteria for determining whether management and administration of a body is conducted on an essentially voluntary basis?

9	The European Court looked first to the purpose of  the condition, which is: 

“to reserve the VAT exemption for bodies which do not have a commercial purpose, by requiring that the persons who participate in the management and administration of such bodies have no financial interest of their own in their results, by means of remuneration, distribution of profits or other financial interest, even indirect” (paragraph 17) .

10	The Court answered question (a) in these terms:

	20	In order to determine the persons directly associated with the management and administration of the body … reference must be made, first, to the constitution of the body in question in order to identify the members of the directing organs and their specific tasks.

	21	Next, it must be determined which persons actually carry out the management and administration of the body, in the sense that, like the directing members of a commercial undertaking, they take the decisions of last resort concerning the policy of the body, particularly in the financial area, and 
carry out the higher supervisory tasks. As the Advocate General points out in paragraph 32 of his opinion, such activities are characterised by the taking, rather than the implementation, of policy decisions and accordingly take place at the highest level. Therefore, persons carrying out purely executory tasks are not affected by the requirement for management and administration on an essentially voluntary basis.  

22	Finally, in the light of those considerations, it is for the competent national authorities to determine, in respect of each body concerned, which are the persons who fall within the scope of the additional condition … and who must therefore fulfil the requirement of not having a financial interest in the body’s results. 

11	In his opinion, Advocate General Jacobs reflected differences in views put to the Court about the answer to this question by himself and each of the three parties (the Zoological Society, the United Kingdom government and the European Commission). He advised:

32 	I therefore take the view that the management and administration referred to concern activities which may influence financial results – and indeed also the use made of the resources thereby arising, in so far as both those aspects may have an effect on the interests of the persons concerned … 
I agree with the Commission that they are characterised by the taking rather than the implementation of policy decisions and take place at a correspondingly higher level. 

12	The Court’s answer to question (b) (the meaning of “essentially voluntary basis”) was prefaced by a reference to the purpose of the indent as noted above. It continued: 

26 	… The words “on an essentially voluntary basis” thus refer both, on the one hand, to the composition, in terms of membership, of the directing organs or, as the case may be, to the persons who actually direct, without being designated by the constitution, and, on the other hand, to the reward which the latter may receive, habitually or by way of exception, from the body concerned. 

27 	It is for the competent national authorities to determine, for each body in question and by means of an overall assessment, whether, by reason of any contribution to the management or the body, as defined in the context of the answer to part (a) of the question, by persons having a financial interest in it, and by reason of any award given to the latter, the essentially voluntary character of the management or administration of a body can be accepted or not.

13	The Advocate General based his opinion about the answer to this question on the view of the Commission, with which the other parties and he all agreed:

	36	In the Commission’s view, it should be taken to mean that substantially all the management and administration of the body in question – as outlined above – must be conducted by unremunerated persons. However, the fact that paid staff intervene in such activities occasionally or in a peripheral manner, or that nominal or token payments are made to the persons responsible for management and administration, is not contrary to that requirement. 

14	As Mr Paines QC put it to the tribunal, it is the tribunal’s task to apply the second indent to the situation at BSO in the light of this authoritative guidance. In so far as the guidance leaves scope for a margin of appreciation by the national authority – as in the tribunal’s view it unavoidably does – the tribunal is to approach its task of application in the light of the considerations (including purpose) set out by the Court and “by means of an overall assessment” reflecting both the formal position and the actual position within BSO. In seeking to follow the guidance of the Court, the tribunal takes into account the views of the Advocate General, to which the Court expressly referred and which, in the tribunal’s respectful view, form the basis of the court’s guidance, in particular, on the second question. 

The constitution of BSO

15	As guided by the Court, the tribunal first considered the formal constitution of the governing organs of BSO. BSO is a company limited by guarantee operating under the name “Bournemouth Symphony Orchestra” since January 2002, the company having claimed exemption from the need to use the “Ltd” suffix to its name.
Although the name changed during the period relevant to the claims made, nothing turns on that. Nor does it turn, in the view of the tribunal, on changes made to the memorandum and articles of association of BSO during the period since 1990. These were mainly concerned with the traumatic period when the company had to close down its second orchestra in order to ensure continuing viability. 

16	The objects of BSO and its musical, educational and other activities fall fully within the scope of the exemption in article 13A(1)(n). It is also clear that the income and property of BSO can be and are applied only in the furtherance of its objects. It is  not a profit making body. The governing requirement on its income and expenditure pattern is to break even. This arises not only from its own constitution and charitable status but also in accordance with its commitments to the Arts Council. It receives a major part of its funding from the Arts Council and the Arts Council clearly also has an important role in the governance of BSO.  As Mr Parker QC put it to the tribunal, the Orchestra’s activities are squarely within the rationale of the cultural exemption. However, article 5 of BSO’s memorandum permits BSO to pay “reasonable and proper remuneration to any officer or servant of the company, or to any member of the company, in return for any services actually rendered to the company.”

17	The question is whether BSO is managed and administered in achieving those objects in a way that falls within or without the second indent.

18	The formal decision making structure of BSO consists of its members acting through general meetings, a Council and a Board. In the tribunal’s view, nothing turns on the powers given to members and annual meetings, and that aspect is not considered further. Article 38 of the articles of association of BSO provides that:

The management of the Company shall be undertaken by the Board, the Council’s powers and duties being limited as set out in Article 45. 

19	Article 45 of the articles provides:

45.1 The powers and duties of the Council shall be limited to the election of the President in accordance with Article 45.2 and to the election of Directors in accordance with Article 48.1 The Council shall not have any executive rights powers or duties.

	…

45.3 The Council shall have the right to receive annual budgets and financial and other reports of the Board and to express opinions to the Board on such budgets and reports.

Article 45.2 states how a President is to be elected and for how long the office is held. It says nothing else about the office of President. The tribunal notes however, that a President can, and the current President David Mellor does, play an influential part in the strategic development of BSO. But he is not a director nor a member of, and does not attend, Board meetings. 

20	Article 71 provides the general position that:

The affairs of the Company shall be managed by the Board who may exercise all such powers of the Company as are not by the Statutes or by the Article required to be exercised by the Company in General Meeting …

Articles 48 to 76 set out the necessary details of membership, procedures and other provisions relating to the Board. Article 48 limits its membership to a maximum of 10 directors. Of these:
	- four are appointed by the Council, 
- one is a musician director (a salaried member of the Orchestra, chosen by the musicians), 
- one is the managing director (currently Mr Henson)
- one may be a further senior executive employee or member (currently vacant)
- three may be co-opted by the Board itself. 
In March 2002 Mr Patrick was (and is) a director and the chairman of the Board. Mr Henson was (and is) the managing director. There was (and is) a musician director. There was (and is) no other executive or employee of BSO on the Board. There were (and are) five other directors. Mr Minns was (and is) Secretary to the Board and attends its meetings, but is not a director. 

“an essentially voluntary basis”

21	To repeat the test set out above from the European Court, the issue is whether “the persons who participate in the management and administration of such bodies have no financial interest of their own in their results, by means of remuneration, distribution of profits or other financial interest, even indirect”.

22	 The tribunal was given full details of the accounts of BSO, the Board minutes and other documents. As noted above, BSO has wide powers to pay its “officers” and its “members”, as well as its “servants” for services rendered to BSO. Those services clearly could include services at the highest level of management and administration. As the Court has emphasised, someone receiving remuneration from BSO is for the purposes of the test someone who has a financial interest in BSO. It was argued that a salary that does not contain any performance-related element and is purely flat rate does not in substance constitute a financial interest in the employer. We reject that argument. The words just repeated from the European Court’s decision deal with the matter directly. And, with respect, we would expect that to be so. Remuneration is an obvious way of extracting value from a body whether it is overtly profit making or not.  And the recipient of the remuneration has an obvious financial interest in the body paying it. 
 
23	As the language of the power suggests, this wide power to pay officers and members appears to be an old power reflecting the long history of BSO. Currently, with the exceptions noted below, the power is not used. Save as below, the tribunal is fully satisfied that – whatever the formal position - no officer or member of BSO or of its Council or Board receives or has at any relevant time received any remuneration or other benefit from BSO (save for possible token benefits that the tribunal does not consider significant). The exceptions are the position of the musician director and of Mr Henson, the managing director.  Aside from them, the tribunal accepts that there is no question but that the management and administration of BSO is not only “essentially of a voluntary nature” but is entirely of such a nature. Indeed, the evidence indicated that, aside from the employee directors, other officers were net financial contributors to the funds of the BSO rather than beneficiaries of those funds. Nor does the tribunal consider that the position of the musician director alters this. He or she receives nothing of substance from being a director, and in particular receives no additional salary or any fee for taking such part in BSO’s management as he or she does. 

24	The present managing director receives “reasonable and proper” remuneration as managing director. The tribunal was given full details of this and is satisfied that there is no specific element in that remuneration that either directly reflects Mr Henson’s position as a member of the Board, or that is in any way directly linked to any profit or surplus of BSO. But, as would be expected in such a position, the remuneration is not “nominal or token”, to echo the words of the Advocate General. It is therefore, following the guidance of the Court, a financial interest in BSO. The tribunal does not accept the argument that the absence of any specifically identified element of the remuneration associated with membership of the Board in any way dilutes the significance of this financial interest. Nor does it put weight on the fact that the Charities Commission is satisfied that for its purposes the managing director is not a “paid trustee” of BSO. The concern of the European Court is clear and the tribunal is required to follow it.  

The position of the managing director

25	The tribunal must therefore evaluate both in form and in substance whether the office of managing director, and the role actually played by Mr Henson in that office, 
is such that his position removes the “essentially voluntary” nature of BSO. 

26	The Commissioners took the view in the decision letter rejecting BSO’s claims for exemption that the position of the managing director both as the senior salaried executive of BSO and as a voting member of its Board was such that he had “a fully active role within the highest level of management and administration of the body”. 

27	Mr Parker QC presented us with detailed evidence from the chairman, the managing director, and the company secretary of BSO, supported by full public and internal documentation of the company. Based on that evidence, he submitted that it is the Board as a whole that is the directing organ of BSO at the highest level; that, as a matter of fact, it is the Board that takes the decisions of last resort and carries out the higher supervisory tasks; that the managing director has no decisive influence on the policy making by the Board, and in a substantial sense has no financial interest in BSO; and that on a balanced and proportionate overall assessment of the management and administration of the Orchestra the presence of the paid managing director on the Board did not deprive the Orchestra of its essential voluntary character.

28	Mr Paines QC countered that by three submissions leading to a conclusion against the BSO contention. He submitted that the managing director is in fact directly associated with the management and administration of BSO at the higher levels. That involvement was substantial and certainly more than peripheral. It was also for more than token or nominal remuneration. As a result, it could not be said that BSO was managed and administered on an essentially voluntary basis. 

29	The formal position occupied by the managing director is dictated by the articles of association and by the contract of employment between the managing director and BSO. We have seen that the managing director is as of right a member of the Board (article 48.3) and he is also a member of the Council (article 39.12).  Article 51 provides that the person appointed to the Board as managing director:

… shall remain a director until he shall cease to be the most senior executive employee and whilst he is a director he shall be the managing director of the company.

Article 54 prevents the managing director from being eligible to vote on any matter concerning his remuneration or terms of employment. Article 55 prevents the managing director from chairing a board meeting. But, subject to these limits and others in the articles, article 66 allows the Board to delegate any power to any sub-committee it thinks fit. This could include a sub-committee comprised only of the managing director. Mr Henson gave evidence that he has powers delegated to him by the Board. 

30	Mr Parker QC stressed the importance of the limits on the managing director within the Board structure. Aside from the article preventing an employee director dealing with his or her own remuneration and terms of service, article 59 imposes a wider limit. Article 59.1 provides that each director has an equal vote and that the  chairman has a casting vote. Article 55 prevents the managing director exercising that casting vote. Article 59.2 contains a more elaborate limit:

59.2 Subject to the provisions of clause 5 of the memorandum of association and these presents, each director present at a meeting of the Board shall have one vote, unless (the intention being that at any meeting of the Board the non-employee directors shall have a greater number of votes than the employee directors):-

59.2.1 at any meeting the number of employee directors is equal to the number of non-employee directors, when one employee director shall not be entitled to vote on any matter; and

59.2.2 at any meeting the number of employee directors is greater than the number of non-employee directors, when the number of employee directors in excess of the number of non-employee directors and one further employee director shall not be entitled to vote on any matter

and in each case the employee director who is not entitled to vote shall in the absence of agreement be decided by lot. 

The effect is that the employee directors as a whole, and the managing director within that number, can never control the Board. Mr Parker also stressed that all eight existing members of the Board are active members and that in substance as well as in form the managing director had no controlling influence in the Board. 

31	The articles of association do not otherwise empower or limit the managing director.

32	The only formal documentation reflecting the contract of employment between Mr Henson and BSO is a letter of 14 December 1998 and a job description. The letter stated that it would be followed by a more formal document but there has not to date been any further document. The letter is confirmation of a previous offer. The copy shown to the tribunal was signed by the chairman of the Board and countersigned by Mr Henson. It deals with the personal terms on which the parties agreed, but it does not deal with the job description or expressly incorporate the terms of the separate job descriptions produced to us. The only relevant point is that “the post (of managing Director) report to the Board of Directors through the Chairman.”

33	There is a separate job description dated 21.10.98. The precise status of this document was not made clear to the tribunal, but it would seem to have been the starting point for the relationship between the present managing director and BSO. It sets out under the heading “main function” the general function of achieving the company’s objective, and then eight more specific functions that together, in the view of the tribunal, put the managing director at the heart of the BSO organisation. In summary, these require the managing director to deal with internal coordination between all the company’s mangers, conductors, and musicians, with external relations with other bodies including funding bodies and those arranging concerts, with oversight of financial controls and financial management, with oversight of staffing levels and direct involvement in salary and linked negotiations with the Musicians Union, with the formulation of key programmes for all aspects of BSO’s activities, and with regular reports to the Board and its sub-committees. 

34	Mr Patrick, Mr Henson and Mr Minns all gave evidence on oath or affirmation of the actual role of the managing director.  They were also all questioned by Mr Paines about the central governance of BSO and the role played by the managing director within that. This evidence and the supporting papers and published literature of BSO show that the management of BSO is run through six departments: concerts and programming, education and ensembles, finance, fundraising, local government liaison and marketing. Each department has a head who reports to the managing director. The managing director then reports to the Board.  In formal structure and in practice, the managing director links all aspects of BSO management and administration and does so at all levels. 

35	Argument was put to us that the reason that the managing director is on the Board is purely historical. It is part of the long tradition of BSO. And it was argued that it is not a necessary part of the managing director’s role. The task could be accomplished by a managing director who was not a member of the Board. It was also argued, although without supporting detail, that in other similar organisations similarly placed officers were not on the Board.  It was also argued that it is necessary in any cultural or charitable organisation of the scale of BSO to have a professional manager, and that the existence of such a manager does not of itself stop the organisation being essentially voluntary. That is precisely the issue being explored in the Zoological Society case. The tribunal was also told that the role of the manager of a body such as BSO is a very specialist one because of the complex business that BSO is and runs. 

36	The tribunal does not seek in its decision to follow down the “what if” lines of argument. It is required to take an overall assessment of the actual position in BSO. It therefore does not explore alternative ways in which another orchestra is run, or BSO itself could be run. Its concern is only with the way BSO is actually run.

37	 The tribunal also resists the temptation to consider in its decision each Board minute and other aspect of the activities of BSO. It was rightly taken to a number of aspects of Board and BSO activity. It looked at the budgetary and financial system; the links with the Arts Council, local councils and other external bodies; the appointment of new officers; relations with the President; relations with the musical profession and those specifically working with BSO; the educational work of BSO; and others. 

38	Rather than attempt to dissect a successful organism, analysing individual parts of BSO in a sort of corporate equivalent to an autopsy, the tribunal instead records the view it is required to record: its overall assessment. The tribunal has noted above the formal structure of BSO, and the role played by the managing director within that. That formal structure puts the managing director on both the Board and the Council of BSO and places few limits, aside from voting limits, on the managing director’s role on those bodies. That being so, and given the remuneration paid to the managing director constitutes a financial interest, the formal position suggests that BSO fails the test of being essentially voluntary. But the Court emphasised that the tribunal should also look at the actual position. 

39	It is clear that both in form and in practice the key decision making body of BSO is the Board. This normally meets monthly with a few gaps, for example during the usual holiday periods. Further, it would appear to be the practice in recent years that decisions are taken by the Board and not delegated from it to committees. Nor is there any indication in the minutes of any role being played by Council save for its powers to elect.  The Board minutes indicate that there was at one time a finance committee, but this seems no longer to operate. The only note of any recent committee being established by, or reporting to, the Board is of a remuneration committee to consider the managing director’s remuneration. Given the duty of all committees to report to the Board on a regular basis, the tribunal find that this reflects and confirms a picture of an active Board meeting regularly and taking the key decisions itself. The tribunal also notes that the Board received a number of important visitors to its meetings, such as the Chairman of the Arts Council of England. This in the view of the tribunal further confirms the importance of the Board. Aside from remuneration, the only matter that recent Board minutes indicate was taken with limited discussion on the basis of a report from an officer is the issue of health and safety. 

40	The tribunal find that the managing director was at all Board meetings of which minutes were produced, and that a major item on every Board agenda was the report of the managing director to the Board. This was also preceded as standard practice by discussions between the chairman and the managing director. While the chairman was also always there, other directors were not always present. Aside from the company secretary (who was also head of finance), other senior managers had previously attended the Board for individual items of discussion rather than full meetings. However, the minutes suggest that this practice has now stopped and that reports from the individual heads are now tabled either as part of the managing director’s report or as part of the finance report. 

41	The tribunal also considered how the Board takes decisions, as some weight was put on the provisions in the articles that prevent employee directors controlling the Board. The tribunal was given and accepts evidence that in practice BSO does not work on the basis of formal votes on the Board but on a consensual basis. Certainly, there is no record in the Board minutes put before the tribunal of any recorded  division on a vote or of any dissenting voter. Nor is there any record of employee directors withdrawing or needing to withdraw, or refraining from exercising any voting or other right. From that the tribunal forms the view that formal limitations on the voting powers of employee directors, while they might have been important had BSO had a different history of management and administration, are in practice of limited significance. Those formal limitations do not of themselves render any role of employee directors insignificant or marginal. 

42	As would be expected, there are many influences in play on the formation of central decision making at BSO, and particularly financial decision making, in the formation of the Board consensus. It is a matter of public record that BSO went through a troubled period a few years ago, and that one of its two orchestras had to be closed down. It is not surprising to find that, at that time in particular, funding bodies and sponsors showed a particular interest in the forward planning of BSO as did those whose jobs were at stake. The tribunal notes that throughout the managing director was centrally involved in all those important discussions and the decisions that arose from them. More generally, the influences on BSO include all its officers, and to a lesser extent its managers and employees, but also on a continuing basis the sponsoring local authorities and the Arts Council and its regional groupings. And the tribunal is of the overall view that one of those influences, and not the least of them, is the managing director.  

43	The tribunal is not concerned with the nature of the input to decision making by BSO or its outcomes. In particular, it has taken care to avoid evaluating in any way the substantive aspects of the input of the managing director to central decision making. It is concerned only whether, on an overall assessment, the process of central decision making by BSO is carried out on an essentially voluntary basis when the position of the managing director is taken into account. That position must be taken into account because the managing director is fully remunerated by BSO and therefore has a financial interest in BSO. The tribunal concludes, based on its consideration both of the formal position and of the actual position, that the managing director has and performs a significant role in the central decision making of BSO. That position is such that, overall, it cannot be said that BSO is run on an essentially voluntary basis. The appeal must therefore fail.    

DAVID WILLIAMS
CHAIRMAN

RELEASED: 15 October 2004

LON/03/479