VAT Seminar MEETING REPORT

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1 Date of Meeting 5 th March 2009 Location: Panel Members Whittlebury Park Golf and Country Club, Nr. Towcester, Northamptonshire, Fred Cowgill, Director, Vatability (UK) Craig Wagstaff, Finance Director, English Golf Union David Croxton, Cold Ashby Golf Club, EGU Board Member Michael Ramsey, Stockwood Vale Golf Club Trevor Williams, Worfield Golf Club, Chariman, EGU Club Services Committee I. Background Currently, the application of VAT to Golf Clubs varies between Proprietary Clubs and Membership Clubs. This application is viewed by Vatability (UK) as unfair and in breach of EU Legislation. Vatability (UK) and the EGU s main goal is for there to be a better, fairer and more equitable method of VAT accounting for all golf clubs. In reality, all Golf Clubs have to be run as businesses irrespective of their constitutional make up. Sporting exemption should be applied fairly and if possible, a lower rate of tax applied consistently across the sport. This seminar was arranged to present the background history of the current legal action; the main aims of that action and to explain how Proprietary Golf clubs can benefit. II. Summary of Presentation Fred Cowgill gave a detailed overview of the current situation and the proposed way forward. The action basically falls into two categories. The key points of both are as follows: Consistent Application of VAT Whitlebury Park Seminar Report DRAFT Page 1

2 Vatability (UK) believes that the current application of VAT to Golf Clubs (and indeed all providers of sporting activity) is in breach of EU Legislation. The 6 th directive (now called DIR 21F) clearly states that the application of VAT should be simple and must not cause a distortion of trade. Vatability (UK) believes that the way VAT is currently applied to sporting activities in the UK contravenes this Directive. EU Legislation already supports the application of a low rate of VAT to providers of sporting activity. Our main aim is to achieving a level playing field for future VAT accounting and a reduced level of VAT cost for both non profit making and proprietary clubs. In order to achieve this, we need to challenge HMRC via the VAT & Duties Tribunal process. We need as many Golf Clubs as possible to join in with this action and submit claims for overpaid VAT (see below) and write to their MPs to raise awareness and to engage their political support. The more clubs who are seen to be involved, the more weight we will add to our case. Reclaiming overpaid VAT Golf Clubs can try and recover VAT paid on some of the supplies wrapped up into the benefits of club membership, where the supplies in question are either exempt, zero rated or outside the scope. Those clubs in existence before 1990 could also make a claim for recovery of ALL VAT on membership subscriptions. Claims to recover VAT since 1973 are not restricted to private members clubs. If a club wished to make a claim for repayment of VAT, these claims MUST be submitted and logged by 31 st March. After this date, retrospective claims can only be made on the previous 3 years. HMRC do not accept that any overpayment of VAT has been made by Golf Clubs. It is therefore necessary to argue our case at a VAT Tribunal. There can be no guarantee of success. We expect HMRC to refuse claims submitted to recover VAT. A standard letter of refusal has been agreed between HMRC & Vatability (UK). This refusal letter is then used as the basis of our appeal to the VAT Tribunal. The terms of the appeal are then consistent with all cases submitted through us. The claims submitted prior to the 31 st March deadline are preliminary ones which will allow club claims to be logged by the VAT & Duties Tribunal before the inhibition of retrospective claims which comes into effect on 1/4/2009. They can be subsequently amended and refined if necessary. Whitlebury Park Seminar Report DRAFT Page 2

3 III. Questions and Answers The seminar was well attended and very well received. Audience participation was very positive and constructive. The following is a summary of the questions raised and answers provided: Q: What legal advice have you sought in preparing your case? A: We have appointed Mr Richard Barlow Barrister and part time VAT & Duties Tribunal Chairman to conduct the case on our behalf. Q: The EGU are sharing the platform today, are they supporting your action? A: Yes fully. They are fully behind this action and are as committed as we are to making it succeed. They have agreed to support us both practically and financially (see question below on Funding) Q: What are the timescales? A: There was a Interlocutory Hearing for the lead case in mid January and whilst we have not yet had dates from the VAT & Duties Tribunal for the full Hearing, we would expect this to be sometime in September/October. The decisions which fall out of that Hearing will determine the actions and therefore the future time scales. Q: If it has been known that the UK Legislation is in contravention of the EU Legislation for some time, why are you taking this action now? A: The time is right. There is significant focus at present on the Olympic Games in 2012 and also on the promotion of sports activities as part of the Government s drive to encourage the public into a healthier lifestyle. Q: What is the difference between a Reduced Rate of VAT & Exemption from VAT? A: Exemption means that although a no output tax is charged on a supply, the recovery of input tax is not permitted. If a supply is subject to a reduced or lower rate of VAT, then input tax can still be reclaimed at the standard rate. Whitlebury Park Seminar Report DRAFT Page 3

4 Q: Is there a risk that HMRC agree to a level playing field by applying the standard rate VAT to all Golf Clubs? A: No. The Existing EU Legislation already provides for a lower rate to be applied. Q: Will the application of a lower / reduced rate of VAT disadvantage Membership Golf Club? A: No. Although they will pay a lower/reduced rate on some supplies that are at present exempt, they will be able to reclaim input tax at the standard rate (see above). Everyone will benefit. Q: Can Golf Ranges join this action and make a claim? A: Yes Q: Do you have sufficient funds available to support the legal action? A: The EGU are fully behind (see above). They have committed 100K as a fighting fund which will be used to support the legal costs. This, in addition to the funds provided by individual golf clubs, we believe will cover these costs. Q: Given that a claim for Reclaiming overpaid VAT needs to be submitted and logged by 31 st March, how practical is it for you to submit claims for us? Timescales appear tight. A: If you provide us with your account information, then we can get the claims in. Q: Is there any possibility of getting an extension to the March 31 st deadline? A: Whilst there may be justification in trying to get this amended, time does not allow us to challenge this. Q: What information will we need to provide you with in order for you to make a claim? A: We will be able to prepare claims from your annual accounts. We need you to provide us with copies of your annual accounts plus any associated notes for those years upon which you would wish to make a claim. Ideally, we would like a breakdown of your income stream to reflect the amount attributable to Members Subscriptions, Driving Range fees etc. We can then apply a standard calculation and use the figures that this gives us to complete your claim. If you cannot find all your account, just send us what you have. Q: Where the ownership of a golf club has changed, what can the current owners claim for? Whitlebury Park Seminar Report DRAFT Page 4

5 A: If the VAT Registration number was taken over by the current owners, then they can claim over the period of both their ownership and that of the previous ownership. If the current owners took a new VAT registration number, they can only claim for the period under their ownership. However, the previous owner could make a claim for the period of their ownership if they so wished. Q: What are your fees? A: Our fee structure is based upon a payment of 2000 plus VAT ( 2300) for the preparation and submission of claims. Full details can be found on our web site: VATability do not charge a success fee nor do we operate a No win, no fee policy. Q: How are our fees used? A: VATability UK will make an application for reclaiming Input Tax for you. The Claim will be submitted to HMRC on your behalf. The fees you pay to us are for the inclusion of your club in the current legal action being taken against HMRC for the recovery of overpaid and / or under recovered VAT. Q: Will I ever be paid by HMRC? A: There can be no guarantee of success. Our ultimate aim is in achieving a level playing field for future VAT accounting and a reduced level of VAT cost for both non profit making and proprietary clubs. The more clubs who join the action, the more our case will be substantiated. Q: Will unjust enrichment be applicable in this case? A: No. Q: How quickly would HMRC implement any changes, should the action be successful? A: There are no set timescales so we cannot be specific about this. However, in our experience we would anticipate that this would be in terms of months rather than weeks. Q : Would you consider the action to have been successful if you get an agreement to a uniform application of VAT to all Golf Clubs but not to any repayment claims? A: Yes. The agreement to a change in the way VAT is applied is by the far the best long term outcome for everyone. Whitlebury Park Seminar Report DRAFT Page 5

6 Q: If the action is unsuccessful in the UK Courts, how much notice will HMRC take of any EU Ruling on this? A: They must abide by any EU Court decision and implement that decision. They will not have any option. IV. Summary of Concluding Statements Following the Question & Answer s session, Craig Wagstaff, Michael Ramsey and David Croxton concluded the seminar. The following is a brief summary of those concluding comments: The more clubs who are involved in the action the greater the impact and the more chance we have of bringing this action to a successful conclusion. We cannot stress the importance of today s meeting too strongly. Please go back and look at the 6 th Directive (you can view this on the Internet) it clearly supports the arguments you have heard today. There is much at stake here and we can all benefit significantly by a successful outcome to this action. It deserves our support. It is vital that pressure is brought to bear on our political representatives to encourage the Government to change the current VAT legislation. We would encourage you all irrespective of whether you join in with this action to send a letter to your MP to appraise them unfairness of the current position and of this action. A vote of thanks was given to Mr Jeff Sergeant and the staff of Whitlebury Park Golf & Country Club for the superb facilities and the excellent hospitality received. Whitlebury Park Seminar Report DRAFT Page 6

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