“outdoor facilities consisting of pitches for team games, athletics grounds, swimming pools, tennis courts, cycle tracks, golf courses, bowling greens, riding schools, camp sites and facilities for gliding….”
“Section 76 of the Public Health Act 1907 (as amended), which empowers a local authority to set aside part of a park or similar open space for the purpose of sports, games or recreational use, e.g. football and cricket pitches, tennis courts, bowling greens, etc., including the power to exclude other members of the public therefrom whilst the activity in question is underway. This legislation further authorised the provision by a local authority of equipment and apparatus for sports, games and recreational use and entitles the local authority to levy charges for the use thereof.”
“The claim has been calculated on the basis of data collected as part of the Council's annual partial exemption calculation, which requires a VAT breakdown of income streams at Council sports and leisure centres, and pro-rated where appropriate.”
“I refer to previous correspondence on the above and the Council's ongoing claim seeking a refund of VAT which it asserts was overdeclared on its provision of sports and leisure services. This letter is by way of amendment to the aforementioned claim in order to bring it up to date for periods 04-16 to 11-17 in respect of ‘mainstream’ sports and leisure facilities (the claim's ongoing amendment in respect of golf courses and sport on parks will follow separately shortly together with further amendments in respect of sports facilities at neighbourhood and community centres and schools-based community sports facilities).”
“I believe this letter is an acceptable amendment to the Council's extant claim, applying the criteria established in Reed Employment Ltd ([2011] UKFTT200(TC) (and not disturbed on appeal), this being a clearly contemplated further element of the extant claim, as indeed upheld by the Tribunal in Longcliffe Golf Club (unpublished but see appeal reference TC-2014-03325). Accordingly, annexed hereto are details of VAT overdeclared by the Council on golf courses income between Period 04-06 and 11-17, when the Council ceased declaring VAT on such income following the Judgment in London Borough of Ealing (C-633/15). You will note that this overlaps the Periods covered by my letter of28 March 2017 , i.e. 04-13 to 03-16, in respect of which this letter should be regarded as a revised calculation of the VAT overdeclared in those periods. This follows a rigorous review of the amounts referred to in my letter of28 March 2017 , which has revealed that these erroneously included ‘VAT’ on income already correctly treated as exempt from VAT. I must apologise for this error.”
“I refer to previous correspondence on the above and the Council's claim seeking a refund of VAT which it asserts was overdeclared on its provision of sports and leisure services; I also refer to the Judgment of the Court of Justice of the European Union in London Borough of Ealing (C-633/15). Having also now perused the criteria established in Reed Employment Ltd ([2011] UKFTT200(TC) and not disturbed on appeal (and as, indeed, upheld by the Tribunal in Longcliffe Golf Club - unpublished but see appeal reference TC-2014-03325), I believe the previous correspondence referred to is, in fact, a single claim for the recovery of VAT overdeclared by the Council on income arising from its sports and leisure provision. This clearly includes not just ‘mainstream’ sports and leisure centres but also golf courses, sport on parks, sports facilities at neighbourhood and community centres, and schools based community sports facilities, it obviously being contemplated by the Council in submitting the claim that it should encompass all sports and leisure services provision, something also in accordance with your requirement for consistency referred to in VAT Information Sheet 08/17. This is, therefore, the basis of the amendments to the claim recently submitted, notably my letters of 17 April, 25 April and 26 April, which together bring the claim comprehensively up to date (albeit a few small elements may still be further adduced).”
“80 Credit for, or repayment of, overstated or overpaid VAT (1) Where a person— (a) has accounted to the Commissioners for VAT for a prescribed accounting period (whenever ended), and (b) in doing so, has brought into account as output tax an amount that was not output tax due, the Commissioners shall be liable to credit the person with that amount. … (2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose. … (4) The Commissioners shall not be liable on a claim under this section— (a) to credit an amount to a person under subsection (1) or (1A) above, or (b) to repay an amount to a person under subsection (1B) above, if the claim is made more than 4 years after the relevant date. (4ZA) The relevant date is— (a) in the case of a claim by virtue of subsection (1) above, the end of the prescribed accounting period mentioned in that subsection, unless paragraph (b) below applies….”
“37 Claims for credit for, or repayment of, overstated or overpaid VAT Any claim under section 80 of the Act shall be made in writing to the Commissioners and shall, by reference to such documentary evidence as is in the possession of the claimant, state the amount of the claim and the method by which that amount was calculated.”
“19 Recreational facilities (1) A local authority may provide, inside or outside its area, such recreational facilities as it thinks fit and, without prejudice to the generality of the powers conferred by the preceding provisions of this subsection, those powers include in particular powers to provide— (a) indoor facilities consisting of sports centres, swimming pools, skating rinks, tennis, squash and badminton courts, bowling centres, dance studios and riding schools; (b) outdoor facilities consisting of pitches for team games, athletics grounds, swimming pools, tennis courts, cycle tracks, golf courses, bowling greens, riding schools, camp sites and facilities for gliding ; (c) facilities for boating and water ski-ing on inland and coastal waters and for fishing in such waters; (d) premises for the use of clubs or societies having athletic, social or recreational objects ; (e) staff, including instructors, in connection with any such facilities or premises as are mentioned in the preceding paragraphs and in connection with any other recreational facilities provided by the authority ; (f) such facilities in connection with any other recreational facilities as the authority considers it appropriate to provide including, without prejudice to the generality of the preceding provisions of this paragraph, facilities by way of parking spaces and places at which food, drink and tobacco may be bought from the authority or another person; and it is hereby declared that the powers conferred by this subsection to provide facilities include powers to provide buildings, equipment, supplies and assistance of any kind. (2) A local authority may make any facilities provided by it in pursuance of the preceding subsection available for use by such persons as the authority thinks fit either without charge or on payment of such charges as the authority thinks fit.”
“[32] The FTT approached the question of whether a further demand is an amendment to an existing claim by adopting the test of whether it was shown to be 'in essence as one with an earlier claim': para [110]. In my judgment, there is nothing wrong with this test, but I am not sure it advances the matter significantly, and I do not think it is appropriate to add a gloss to the statutory wording. The FTT proceeded to hold as follows: ' [111] That test, in our view, will be satisfied only if the later claim arises out of the same subject matter as the original claim, without extension to facts and circumstances that fall outside the contemplation of the earlier claim. Without deciding matters outside of this appeal, we consider, for example, that this would generally include cases where a particular computation was not made at the time of the original claim, but the subject matter of the claim was sufficiently identified for such a calculation made subsequently to be related back to the original claim. Simple calculation errors would similarly be included. It should also cover, we think, cases where particular items within the category of the subject matter of the original claim are unknown or not fully identified at the time of the original claim, and would but for that fact have been included in the original claim, but only subsequently come to light.' [33] If subsequent to the submission of a claim, the taxpayer sends in the correction of a mistake, whether that be an arithmetical error or through the omission of some supplies that were clearly intended to be included, then I consider that would clearly not be a new claim but an amendment. Further, if the taxpayer making a claim says that he is not yet able to calculate the full figures and gather all the documentation as required by reg 37, but is in the course of doing so and will provide such further details as soon as possible, such further submission would not constitute a new claim but fall within the scope of the existing claim. Thus I consider that what is an amendment is very much a question of fact and degree, judged by the particular circumstances. I therefore respectfully agree with the test set out by the FTT in the first sentence of para [111]. However, of the examples given in that paragraph, I would not wish to approve in the abstract the final example: that would be for consideration on the particular facts of the case should it arise. [34] It follows that I reject the submission of [Counsel for Reed] that the crucial issue for determining this question is the relationship between Reed and HMRC and thus whether the later application relates to the same accounting period or periods; and that if the later application arises out of the same underlying error (i.e. here accounting for the whole of the sum received by Reed rather than just its commission) and the only difference is one of quantum the latter cannot be a new claim. I consider that there is no warrant for such a prescriptive requirement given the statutory language to which I have referred. [35] I should add that the fact that the 2009 demand is drafted in the form of an amendment to the third repayment claim cannot serve to constitute it as such an amendment if in substance it is not.”
“[38] [Counsel for Reed] gave the example of a claim for a particular accounting period in respect of supplies in London, where the taxpayer subsequently wrote to ask for repayment in respect of supplies made for the same accounting period in the rest of England. However, in my judgment, unless there was some express reservation in the initial claim of the kind that I have indicated, the later request would clearly constitute a separate claim. So also if Reed initially sought to claim reimbursement of allegedly overpaid VAT only for its placement services in the healthcare sector, and subsequently made a demand for repayment as regards another part of its business, notwithstanding that this was for the same accounting period and arising out of the same error.”
“[56] We agree with Judge Mosedale [the FTT judge] that s 80 and reg 37 carry with them an implicit requirement that a claimant should provide reasons sufficient to enable HMRC to understand why the claim has been made. We agree too with Mr Hitchmough that it would be strange if the implicit requirement of reasons were to be rigid while the mandatory requirements of reg 37 were flexible. The requirement to identify the methodology by which the amount of the claim is ascertained will, expressly or by necessary implication, identify the elements of the output tax brought into account which are said not to be output tax due. At least, we have been unable to conceive of a case where that requirement would not do so. In that sense, the reasons for the claim will be provided by the claim. But that is not the important point, which is that the requirement relating to methodology forms part of the identification of the claim, defining what the claim actually is. [57] The essence of the conclusion of Roth J in Reed Employment was that a claim could be amended, even if the amendment consisted of a change in the amount claimed or the method of calculation, as long as the fundamental character of the claim was unchanged: in other words, the amended claim had to arise out of essentially the same facts or circumstances as the original claim. The examples Roth J gave in that case, at para [33], were of the correction of an arithmetical mistake or the addition of an element of claim which the taxpayer had plainly intended to include but which, by mistake, he had omitted. Those examples are consistent with our own conclusion that it is the amount and the method of calculation which define the claim; amendments of that kind do not alter its fundamental character. Nothing Roth J said limited the permissible amendments to those which did not increase the amount of the claim, and we respectfully agree with him on that point; once it is accepted that amendment is possible, there is no logical reason for a restriction of that kind. Indeed, one of the examples he gave might result in an increase in the overall amount of the claim, and the second almost inevitably would do so. [58] By contrast, the example of an impermissible amendment he gave at para [38] was of the addition of a further claim arising out of similar but not the same circumstances. The reason why the taxpayer was unsuccessful in that case was not because of an amendment of the calculation, nor because the amendment, if allowed, would increase the value of the claim, but because it was attempting to add what was in reality a separate claim. Again, we agree with Roth J's reasoning and with his conclusion.” “33. Although it is difficult to imagine a subsequent claim being regarded as an amendment to an earlier one unless they related to the same supplies, the converse is not necessarily the case. Even if a taxpayer only ever supplies one type of service throughout the course of his business, it does not mean that two claims for repayment made at different times and covering supplies made in different accounting periods must necessarily be regarded as one claim and an amendment to it. As Roth J. made clear in paragraph 31 in Reed , there is no reason why the two claims could not be regarded as self-standing. Moreover, a conclusion that a later claim could always be regarded as an amendment to an extant earlier claim in respect of the same or similar supplies would significantly undermine the effectiveness and purpose of the limitation period in section 80 VATA, because it would not encourage accuracy and finality in the submission of claims. … 35. … I note that in Reed , Roth J. endorsed the point made by the FTT in the first sentence of paragraph 111 of its judgment, that the test of whether a subsequent claim should be regarded as an amendment of an original claim will be satisfied only if the later claim arises out of the same subject matter as the original claim, without extension to facts and circumstances that fall outside the contemplation of the earlier claim. 36. Put in those simple terms, it is clear that the Original Claim did not include and did not contemplate a repayment claim in respect of MSB, or a claim in respect of any supplies during periods prior to1 November 1980 . 37. As to a claim for MSB, the wording of the Original Claim could not have been clearer in referring only to MCB, AWP and JM. On any objective reading, the Original Claim did not include a claim in respect of MSB. Moreover, although I think that it is an objective test, it is apparent from the explanation that Mr. Deeming gave as to the advice he received before making that Original Claim and the subsequent advice he later received (“I was advised that I could also claim for MSB”) that no-one thought that the Original Claim did include a claim for MSB. The subsequent decision to make a claim for MSB was the product of analysis by the Appellant's advisers in light of the Revenue Briefings following the decision of the High Court in Rank in June 2009. 38. It is also clear that when Roth J. referred in Reed to the correction of mistakes by amendment, “whether that be an arithmetical error or through the omission of some supplies that were clearly intended to be included”, he was referring to the correction of accidental errors or omissions. The concept of mistake in this context cannot include a conscious decision by a taxpayer not to include certain items in a demand. That is so even if, with the benefit of hindsight as to law or fact, it is subsequently appreciated by the taxpayer that it would have been preferable to have included further supplies and his earlier decision not to do so turned out not to be to his best advantage. 39. That conclusion is illustrated by the actual decision reached in Reed to which I have referred in paragraph 24 above. It is also illustrated by the examples given by Roth J. of mistakes that could be corrected by amendment. The concept of amendment of an earlier claim would plainly cover, for example, a demand for repayment for a number of supplies where one of the numerical amounts was, by clerical error, misstated; or where the total amount reclaimed was wrongly added up. Likewise, if the claim stated that the taxpayer was applying for a repayment in respect of VAT on supplies made in accounting periods 1-4, but by carelessness the amount in respect of supplies made in 4th period was omitted from the computation. But as Roth J. pointed out, the concept of amendment of an earlier claim would not cover a further demand made by reference to supplies made in a different geographical area, or in a different type of business than the one specified in the first claim in circumstances where, viewed objectively, there had been a conscious decision to limit the supplies which were the subject of the first claim. … 42. As regards the claims in respect of supplies prior to1 November 1980 , the simple fact, as identified by the FTT, was that the Original Claim was expressly made by reference to the period1 November 1980 to4 December 1996 and made no mention of any other accounting periods. 43. If, as I think it is, the key question is whether the Original Claim, viewed objectively, indicated any intention on the part of the Appellant to make a claim for periods prior to1 November 1980 , the clear answer is “no”
“13. It seems to me that Reed Employment and Vodafone show that the first step in determining whether an amendment to grounds of appeal relating to a claim for repayment is a new claim, is to identify the fundamental character or elements of the original claim. The fundamental character or elements of a claim are to be found in the facts and circumstances of the claim which can be ascertained from the methodology by which the amount of the claim is calculated and the reason given why the amount accounted for was not output tax due. The relevant elements include the particular supplies or transactions which gave rise to the claimed overpayment of output tax and the specific output tax claimed (but not necessarily the amount). It is then necessary to consider whether the amendment, if allowed, would change the fundamental character or elements of the original claim to such an extent that it is a separate claim. 14. An amendment that does not change the fundamental character or elements of the original claim is not a new claim but an amendment to the original claim. Errors and omissions that do not enlarge the scope of the claim by adding elements not in contemplation when the claim was originally made would not normally constitute a new claim. It appears from both Reed Employment and Vodafone that changes to the amount claimed or the method of calculation do not, without something more, alter the fundamental character of the claim. An amendment that extends the facts and circumstances beyond those contemplated by the earlier claim is a new claim. For example, an amendment that extends a claim to include supplies to clients not included in the original claim will be a new claim and not an amendment to the original one. In Reed Employment , the further demand in that case and the examples given by Roth J of further demands that constituted new claims all involved, if permitted, enlarging an existing claim by including supplies that were outside the scope of the original claim although they arose from the same error. In Vodafone , the further demand related to errors and supplies entirely unconnected with those that formed the basis of the original claim and, therefore, a separate claim.”
“[27] I agree with Roth J [in Reed Employment ] that the formal requirements of a claim are those contained in reg 37. However, as I have explained, reg 37 and s 80 have to be read together so as to give 'claim' and 'amount' a consistent meaning throughout. A claim under s 80 is not any demand for repayment of overpaid tax, but is a demand for repayment of overpaid output tax for a prescribed accounting period which is not output tax due. Thus I would not agree that a claim under s 80 'may relate to one accounting period or many'. A taxpayer may, in the same letter, raise a number of different claims, each by reference to an accounting period, but multiple such claims in the same letter are not, in my judgment, correctly referred to as a single claim under s 80. That distinction did not matter for the purposes of Reed , but is of importance in the present appeal. In any event, Roth J did not go so far as to suggest that a claim could be made, as here, without reference to any accounting period at all. [28] I do not think that there is much to be derived from the fact that there are wide powers of amendment available to those who make a claim, as Roth J recognised in Reed. The first question must be to determine the requirements imposed by the statute and the regulation. It does not follow from the existence of a power to amend the amount, or its method of calculation, that the claim is not required to state an amount (in the defined sense) and a method of calculation at the outset.”
“In summary, the Tribunal finds that a request for repayment arising from new VAT periods, different supplies … and different sums claimed to be overpaid must necessarily concern different subject matter in comparison with the original claim. Unspecified and future VAT periods fell outside the contemplation of the taxpayer when making the original claim in April 2009, and that is sufficient to find that the original claim included requests for repayment relating to the additional periods.”