The owner and operator of a casino resort (“River Cree”) agreed with the owner of ATMs (“Access Cash”) which, in turn, had access to the Interac payment network of a network operator, that it would make various locations on its resort available for the siting of Access’ ATMS, load those ATMs with its own cash (for the later reporting periods at issue) or with money borrowed by it from Access Cash (for the earlier periods) and provide the utilities, security, routine maintenance and customer support necessary to operate the ATMs. River Cree received from Access Cash an amount equal to the per-transaction “surcharge fee” of under $4.00 imposed on the cardholder and also an additional amount equal to a fraction of the interchange fee of around $0.75 per transaction that the cardholder’s bank was required to pay to the Interac network member who operated the particular network that was used to complete the transaction. The cash of River Cree disbursed out of the ATMs was reimbursed to it with funds ultimately derived from the cardholder’s bank.
Graham J found that Access Cash was the operator of the ATMs, that River Cree was merely providing the locations and providing services to River Cree that were not the withdrawal of cash from the ATMs, that the supply of cash by River Cree was not the predominant element of the single compound supply made by River Cree to Access Cash and that such predominant element was the exclusive right to place and operate ATMs at the Resort and to process all transactions arising therefrom, which was a taxable supply.
Webb JA found that River Cree had not established any palpable and overriding error in these findings.
There was also no such error in the Tax Court’s rejection of River Cree’s contention that there was a joint venture between River Cree and Access Cash for the provision of a financial service. In this regard, Webb JA noted that there is no joint venture where the parties to a contract do not intend to associate themselves as joint venturers, and that there was no reversible error in the finding below that, under their agreement, River Cree and Access Cash did not intend to operate the ATMs as a joint venture.