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Tesco Freetime: loyalty schemes and recipients of supplies

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In a tripartite context, how do you decide who supplies what and to whom? Cases such as Airtours and Secret Hotels2 tell us that contracts are an important starting point. Newey and other cases make clear that the economic reality is also important. But what does that actually mean? The Tesco Freetime case – in which the FTT found that Tesco could recover input tax incurred on operating a loyalty scheme – is an illuminating example of the importance of understanding the economics and ensuring the contracts align with that ‘economic reality’ and bolster the desired analysis.

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