Jumpman Gaming Ltd v The Commissioners for HMRC

For section 159A(4)(b) of the Finance Act 2014, the phrase ‘the gaming’ refers to remote gaming identified at the start of subsection (4), rather than only gaming under an offer waiving payment. The relevant offer must have been won in the course of participation in that gaming; the provision does not require tracing an entitlement through earlier games to an originating freeplay. Consultation materials may be considered as legislative background to identify context and mischief, whether or not they were before Parliament, but they cannot displace enacted language. An appellate court does not revisit an evaluative finding merely because another conclusion was possible. It may intervene where the finding was not reasonably open or involved consideration of irrelevant matters or failure to consider relevant ones.

Jumpman Gaming Ltd operated online gaming platforms. Under its Welcome Offer, a customer making a qualifying deposit received a free spin on the Mega Reel, which could award free spins on other games. HMRC assessed Jumpman to about £13.2 million in Remote Gaming Duty for periods between July 2018 and December 2022.

The First-tier Tribunal dismissed Jumpman’s appeal, holding that the Welcome Mega Reel spin did not involve a waived gaming payment and that later free spins did not qualify for the statutory exclusion: [2025] UKFTT 1117 (TC). Jumpman appealed on three grounds: the FTT’s application of section 159(4), its refusal to consider consultation materials, and its interpretation of ‘the gaming’ in section 159A(4)(b). The central questions were whether the FTT’s factual evaluation disclosed an error of law, whether the consultation materials could be considered, and whether the exclusion covered free spins won through remote gaming that was not itself played under a waived-payment offer.

1. Ground 1 dismissed. The pleaded ground challenged the FTT’s evaluation of the evidence, not its construction of section 159(4) of the Finance Act 2014. The broader statutory argument emerged shortly before the hearing and would materially change the appeal. In the circumstances, the Upper Tribunal refused to permit that reformulation and expressed no concluded view on the broader construction question.
2. An appellate court does not retry a case or interfere merely because it might have reached a different conclusion. Under the approach explained in Volpi v Volpi [2022] EWCA Civ 464 and reaffirmed in Lifestyle Equities CV v Amazon UK Services Ltd [2024] UKSC 8, the appellant had to show that the FTT’s conclusion was not reasonably open on the evidence, or that it took account of irrelevant matters or failed to consider relevant ones: Degorce v HMRC [2017] EWCA Civ 1427. The FTT was entitled to find that the displayed spin value was not an amount ordinarily payable, that internal accounting entries did not establish a customer payment, and that occasional paid Mega Reel promotions on different terms did not show that customers would otherwise have had to pay for the Welcome spin.
3. Ground 2 allowed. Consultation materials may form part of the legislative background and assist in identifying context, purpose and mischief. Their relevance does not depend on whether they were before Parliament, and they cannot displace the enacted words. The FTT therefore erred by excluding the materials altogether.
4. Ground 3 allowed. The text of section 159A(4)(b), read with its context, does not confine ‘the gaming’ to participation under the waived-payment offer described in paragraph (a). The heading and some explanatory material favoured HMRC’s narrower reading, but did not establish that limitation. The more specific explanatory note referred to a freeplay won from ‘gaming’, and the consultation materials addressed conventional freeplay and re-wagering arrangements without setting out the historical tracing exercise HMRC’s reading required. In the phrase ‘in the course of’, the natural focus is the participation that generated the relevant entitlement, not remote gaming many transactions earlier. The FTT therefore erred in law.
5. The error affected the treatment of the Further Free Spins. Under the correct interpretation of sections 159A(4) and (5), they fell within the exclusion and did not give rise to gaming payments. The FTT’s conclusion that the Welcome Offer itself created no liability remained undisturbed. No further fact-finding was required: the decision was set aside to that extent and remade, and the assessments were reduced to nil under section 16(5) of the Finance Act 1994.

• Upper Tribunal (Tax and Chancery Chamber): Grounds 2 and 3 allowed and Ground 1 dismissed. The FTT decision was set aside in part and remade; the assessments were reduced to nil.
• First-tier Tribunal (Tax Chamber): Dismissed Jumpman’s appeal against the Remote Gaming Duty assessments: [2025] UKFTT 1117 (TC).