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1 DELEGATED POWERS REPORT NO. 778 SUBJECT: Control sheet All of the following actions MUST be completed at each stage of the process and the signed and dated report MUST be passed to Democratic Service for publishing All reports 1. Democratic Services receive draft report Name of DSO Nick Musgrove 2. Democratic Services cleared draft report as being constitutionally appropriate 3. Finance clearance obtained (report author to complete) 4. Staff and other resources issues clearance obtained 5. Trade Union response received (Staffing issues only) 6. Legal clearance obtained from (report author to complete) 7. Policy & Partnerships clearance obtained 8. Equalities & Diversity clearance obtained 9. The above process has been checked and verified by Director, Head of Service or Deputy 10. Signed & dated report, scanned or hard copy received by Democratic Services for publishing 11. Report published by Dem Services to website Name of Fin. officer Clive Medlam Name of Res. officer N/A Name of TU rep. N/A Name of Legal officer Sheila Saunders Name of P&P officer Andrew Nathan Name of officer Julie Pal Name Clive Medlam 24/03/ /3/09 1/4/09 Officer reports: 12. Head of Service informed report is published and can be implemented. Name of DSO Cabinet Member reports: 13. Expiry of call-in period 14. Report circulated for call-in purposes to COSC Name of DSO members & copied to Cabinet & Head of Service Nick Musgrove 1/4/09

2 ACTION TAKEN UNDER DELEGATED POWERS BY OFFICER (EXECUTIVE FUNCTION) Subject Officer taking decision To appoint KPMG as advisors to assist with re-claiming VAT from HMRC Director of Resources of decision 24 March 2009 Summary Officer Contributors To appoint KPMG as advisors and to undertake work required to re-claim VAT monies from Her Majesty s Revenues and Customs (HMRC) as a result of the Fleming case. Catherine Peters, Head of Finance, Finance Support, Shared Services Status (public or exempt) Wards affected Enclosures Reason for exemption from callin (if appropriate) Public with separate exempt section Not applicable None Constitution part 3, section 6 Powers Delegated to Officers and Contract Procedure Rule 5.5 Contact for further information: Catherine Peters, Head of Finance, Serial No. 778

3 1. RELEVANT PREVIOUS DECISIONS 1.1 None. 2. CORPORATE PRIORITIES AND POLICY CONSIDERATIONS 2.1 This contributes to the Council s delivery of the following key priority of the Corporate Plan 2008/ /11: More choice, better value. 3. RISK MANAGEMENT ISSUES 3.1 I have considered whether the issues involved are likely to raise significant levels of public concern or give rise to policy considerations and they do not. 3.2 Failure to appoint KPMG to carry out this work could result in the Council missing the opportunity to re-claim VAT previously paid. 3.3 At the time of appointing KPMG, officers were not in a position to estimate how much the claim could amount to and hence the resultant fees to be paid and this is why the DPR has only now been drafted. At present it is estimated that fees payable to KPMG maybe in the region of 65,000 but this is dependant upon whether VAT is recovered from HMRC and, if so, how much is recovered The deadline for the submission of claims to HRMC is 31 st March EQUALITIES AND DIVERSITY ISSUES 4.1 There are no specific equalities and diversity issues directly generated by the selecting KPMG. 5. USE OF RESOURCES IMPLICATIONS (Finance, Procurement, Performance & Value for Money, Staffing, IT, Property, Sustainability) 5.1 There are no ICT or property implications. 5.2 The fee to KMPG is a contingent fee (no win, no fee). The fee is paid on the basis of any VAT successfully recovered - 10% of recoveries in respect of the Sporting exemption and 5% of any additional VAT recoveries in respect of all other claims. 6. LEGAL ISSUES 6.1 None in the context of this report. 7. CONSTITUTIONAL POWERS 7.1 Constitution Part 3 responsibility for Functions Section 6 powers of Chief officers 7.2 Contract Procedure Rule 5.5.

4 8. BACKGROUND INFORMATION 8.1 On 1 st May 1997, HMRC introduced a three year cap to prevent any VAT registered business from claiming any input tax it had incurred. Prior to this there was no time limit. Businesses had been able to put forward claims to HMRC for repayment of overpaid VAT, the correction of errors and late claims to input tax going back years. 8.2 The three year capping rule was introduced without a transitional period in which businesses could put in a claim. Following this there were two appeal cases Michael Fleming t/a Bodycraft v RC and Conde Nast Publications v HMRC. 8.3 On 23 January 2008, The House of Lords published its long awaited decision in the above cases. These appeals centred on the validity of the imposed three year capping rules for input tax. In these appeals the court found that the introduction of the three year cap without warning was contrary to EU law. Consequently the courts found that until HMRC formally provided a reasonable transitional period in which businesses could submit any claims, the three year cap for input VAT incurred prior to 1 May 1997 did not apply. 8.4 In addition to this claims can also be made for output tax overpaid or over declared in accounting periods ending 4 th December Generally speaking these claims to HMRC for the input and output tax are referred to as Fleming claims. 8.5 Where HMRC policy has changed the VAT treatment, for example, in public Libraries where the hire of audio/visual materials was previously standard rated, this was changed to non-business in 2003, businesses can go back further than three years and re-claim the VAT paid. For Barnet this meant that VAT could be reclaimed for Sporting and Cultural exemptions, catering, libraries, school vending machines, bulky household waste, memorial supplies at cemeteries, off street parking and excess charges for off street parking. 8.6 Barnet was contacted by three organisations who wished to assist in preparing the claims KMPG our current VAT advisors, Company A and Company B. An interview was held with the former two and details of the latter was submitted via e- mail followed by telephone discussions. Two (KPMG and Company A) offered the choice of fee being either fixed or contingent. The fixed fee would result in the Council making payments whether or not the claims were successful. It was therefore agreed that a contingent no win, no fee was the better option as payment would only be made where claims were successful. This resulted in the choice of KPMG who provided the lowest quotation which represented value for money and the best available option for the Council. 8.7 The contingent fee quotations received were as follows:- KPMG Company A Company B Sporting exemption 10% 20% 20% Additional VAT recoveries 5% 20% 5% 8.8 The deadline for the claims to be received by HMRC is 31 st March 2009.

5 9. LIST OF BACKGROUND PAPERS 9.1 Comparison of fees submitted and Engagement Letter from KPMG. 9.2 Any person wishing to inspect the background papers listed above should telephone OFFICER S DECISION I authorise the following action 10.1 The appointment of KMPG as VAT advisors to assist with re-claiming VAT from HMRC. Signed Signed by Clive Medlam Director of Resources 24/03/09

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