Oh yes it is! Christmas Spectacular qualifies as dramatic production

In Thursford Enterprises Limited v HMRC [2022] TC08560, the First Tier Tribunal (FTT) found that a 'Christmas Spectacular' performance did have sufficient dramatic production value in order to qualify for Theatre Tax Relief.

• In 2017, Thursford Enterprises Limited (Thursford) staged a production known as The Christmas Spectacular.
• The production was described as a “seamless dramatic journey to Christmas” with scenes, readings and songs used to evoke the journey to Christmas.
• Elements of the show included: readings; a brass and string ensemble with singers, solo singers, a comedian who acted as master of ceremony, a juggler; dancers, an organist, an orchestra and a jazz band.
• HMRC denied Theatre Tax Relief (TTR) on the basis that the Christmas Spectacular was not a ‘theatrical production’.
• Thursford Appealed to the First Tier Tribunal (FTT).

A theatrical production is defined as meaning a dramatic production or a ballet.

Subject to specific exceptions, a ‘dramatic production’ means a production of a play, opera, musical or other dramatic pieces, where the actors, singers, dancers or other performers give their performances wholly or mainly through the playing of roles.

The FTT found that:

• A production is dramatic where there is the creation of a dramatic illusion and/or the performance is representational.
• While elements of the Christmas Spectacular would not be considered to be dramatic if taken on their own, as a whole, the production was representational and conveyed a dramatic illusion/imagined life.
  • The audience was taken on an imaginative journey of Christmas memories.
  • The Christmas Spectacular was therefore an ‘other dramatic piece’, meaning that it was a dramatic production.

The question then turned to whether the performers give their performances wholly or mainly through the playing of roles.

• Simply because a performer is paid to be on stage and adopt a performance persona, that alone is not sufficient for it to amount to the playing of a role.
  • Where a performer is required to perform in accordance with a directed interpretation or characterisation, they will be playing a role.
  • They will not be playing a role and will be performing as themselves, where they have the freedom to perform without direction and by reference only to their training.
• The comedian was not playing a role.
• The juggler was presenting his skill as a juggler and so also not playing a role.
• The musicians (including the organist) were not playing a role. The orchestra performed the score as led by the conductor, but in their capacity as themselves.
• The singers and dancers were hired partially because of their ability to be directed/act or take on the characterisation required to contribute to the intended dramatic illusion, were playing roles:
  • Each individual adopted the directed interpretive effect for each scene.
  • Roles of Dickensian carolers, 1950s show members, rock and roll performers, choristers, toy soldiers, dramatists, penguins, stars of film/musical, gospel choir members, ballet dancers, and party revellers dressed as Father Christmas were performed by the dancers and singers.
• As the dancers and singers represented the majority of the cast (80 out of 112). This meant that the performance was mainly through the playing of roles.

Thursford’s appeal was allowed.

Comment

The FTT noted that had there been 80 musicians/comedians/jugglers and only 42 singers or dancers the ‘mainly playing roles’ test would not have been met and TTR would not have been due.

The TTR legislation was amended for productions where the production phase begins on or after 1 April 2022.

Relief no longer applies to an ‘other dramatic piece’ but instead to a ‘relevant dramatic piece’. This is defined as a dramatic piece (other than a play, opera or musical) that tells a story or a number of related or unrelated stories.

Useful guides on this topic

Tax relief for Theatrical Production
What is Theatre Tax Relief (TTR)? Who can claim it? What are the conditions?

Creative Industries Tax Reliefs: At a glance
Creative Industries Tax Reliefs, are a growing suite of special company tax reliefs that are similar in form to Research & Development (R&D) tax relief.

External link

Thursford Enterprises Limited v HMRC [2022] TC08560