Qualifying productions: live performance to paying members of the general public or provided for educational purposes (commercial purpose condition)
S1217GA Corporation Tax Act 2009
A theatrical production can only be a qualifying production for Theatre Tax Relief (TTR) purposes if, at the beginning of its production phase, the Theatrical Production Company (TPC) intends that all, or a high proportion of, the live performances that it proposes to run will be:
- to paying members of the general public, or
- provided for educational purposes.
If a production is not originally intended for performance to paying members of the general public or to be provided for educational purposes then a TPC cannot meet this condition by changing its intention later.
However, if a new version of the production is developed with the intention of performing it to paying members of the general public or providing it for educational purposes then the new production may qualify for TTR. The costs associated with the precursor production not intended for performance to paying members of the general public or for educational purposes will not qualify for relief.
The legislation does not specify whose ‘intention’ this should be. But at any time there will normally be someone entitled to determine how the production is to be exploited. This would generally be the person who commissioned it. For example, the trustees of the commissioning charity or directors of the commissioning company.
If there is any doubt about the intention, the following factors would count in favour of the production being intended for live performance to paying members of the general public or for educational purposes:
- a finance plan written on the basis that the production will be performed to paying members of the general public or provided for educational purposes
- payment to actors and other participants on terms in line with those prevailing for similar productions, and
- the relevant person can demonstrate that, when the production phase began, there was an intention to seek an appropriate theatre accessible to the general public or educational venue.
For the meaning of ‘live performances’ see TTR40020.
Paying members of the general public
This means that there must be a commercial imperative, at the outset, to run live performances before a paying audience, consisting of the general public. There will be a paying audience if the vast majority of the tickets for each of the live performances are reasonably made available for purchase by the general public. Events held in private will not be eligible for the relief unless those attending the performance are charged for the entertainment (and with a view to making a profit). This rule is intended to prevent companies who organise a private show from making a claim, where they might otherwise fit the criteria. However, see Provided for educational purposes below.
Provided for educational purposes
Where a production is provided solely for educational purposes it does not have to be performed live before the paying general public. This allows, for example, a charitable TPC whose main charitable aim is educational, to perform live to, say, schools to qualify for the relief.
‘Educational purposes’ is not specifically defined in the legislation. However, the company must be able to demonstrate that its activities are wholly or mainly for educational purposes. For example, it is not sufficient for a company to claim a performance is for educational purposes merely because it has the term ‘education’ in its articles.
A performance is not regarded as provided for educational purposes if the company is, or is associated with, a person who has responsibility for the audience or is otherwise connected with the audience (for example by being their employer).
A production company is associated with a person (P), if:
- P controls the production company, or
- P is a company which is controlled by the production company or by a person who also controls the production company.
‘Control’ has the same meaning as in Part 10 of Corporation Tax Act 2010.