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Item 13 - Fair Tax Declaration

West Dunbartonshire Council · 26 October 2022
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WEST DUNBARTONSHIRE COUNCIL
Report by Chief Officer - Resources Services
Council: 26 October 2022
Subject:  Fair Tax Declaration
1. Purpose
1.1 The purpose of this report is to provide Council with further information
regarding adoption of the Fair Tax Declaration.
2. Recommendations
2.1 Council is asked to:
a) Note the information gathered on the Fair Tax Declaration pledge.
b) Note that under the current Procurement Regulations, the Council can
only exclude any economic operator from participating in Council
tenders if that operator has not met all of its obligations relating to the
payment of taxes.
c) Notes the possible implications for the Council and its services should
the Fair Tax Declaration pledge be adopted.
d) Agree that, whilst the Council is not able to fully adopt the Fair Tax
Declaration pledge, it can promote and support key elements of it.
3. Background
3.1 At the full Council meeting on 31 August 2022,  a motion in relation to the
potential adoption of the Fair Tax Declaration (FTD) was considered and it
was agreed that the officers review the FTD and provide a report to Council
to provide a comprehensive understanding of the FTD and the implications
for West Dunbartonshire Council (the Council) and its services should it be
adopted 
3.2 The FTD pledge requires councils to consider ethical, value for money and
quality issues when procuring as well as ensuring that fair taxation practices
are adhered too. In particular it requires councils to:
“Lead by example and demonstrate good practice in our tax conduct, right
across our activities. Including: 
• Ensuring contractors implement IR35 robustly and a fair share of
employment taxes are paid.
• Shunning the use of offshore vehicles for the purchase of land and
property, especially where this leads to reduced payments of stamp
duty.
• Undertaking due diligence to ensure that not-for-profit structures are not
being used inappropriately as an artificial device to reduce the payment
of tax and business rates.
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• Ensuring that there is clarity on the ultimate beneficial ownership of
suppliers and their consolidated profit and loss position, given lack of
clarity could be strong indicators of poor financial probity and weak
financial standing.
• Promote Fair Tax Mark certification for any business in which we have a
significant stake and where corporation tax is due.
• Join in and support Fair Tax Week events in the area and celebrate the
tax contribution made by responsible businesses who say what they pay
with pride.
• Support calls for urgent reform of EU, UK and Scots law to enable
municipalities to revise their procurement policies and better penalise
poor tax conduct and reward good tax conduct."
3.3 The Fair Tax website details the list of councils “that have shown significant
support for fair tax”, including City of Edinburgh Council, Dundee City
Council, Midlothian Council and South Lanarkshire Council.  However the
website does not make any reference to councils formally approving the FTD
pledge. 
4. Main Issues
4.1 The Council, like any public sector body, has to follow the rules and
regulations prescribed by law.  To do otherwise, regardless of the merits of
the moral obligation, would put the Council at significant risk of challenge
from court regulators, auditors and / or the public. This requirement creates
some issues in relation to the FTD pledge.
4.2 The Council’s Procurement Regulations allow for the exclusion of any
company convicted of an offence relating to the non-payment of taxes. Under
the terms of the EU Treaty Principles of proportionality, non-discrimination
and equal treatment; which still apply after the UK withdrew from the
European Union, it is not possible to evaluate a company based on tax
conduct deemed to be either good or poor.
4.3 Officers have asked the Scottish Government for comment on the FTD
pledge and any government initiative to review Fair Tax. The Scottish
Government responded to state that they support measures to ensure that
businesses pay a fair amount of tax. The Scottish Government believes that
businesses have an ethical obligation to deal openly with their tax affairs and
to avoid engaging in artificial arrangements simply to reduce their tax
liabilities. These principles already sit at the core of the Scottish approach to
taxation.
4.4 The key elements of the FTD pledge can be addressed through use of the
Scottish’s Single Procurement Document (SPD), mandated by the Scottish
Government for regulated procurement - supplies and services spend from
£50k and work spend from £2m. The Council’s procurement processes
exceed the requirements set by the Scottish Government as all Council
formal tender processes utilise the SPD.  This ensures that even tenders of
lower value are subject to scrutiny.

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4.5 The SPD is used at the Selection Criteria stage of a tender process and
allows officers to identify suitably qualified and experienced bidders. The
Selection Criteria must be proportionate to the value of the procurement, its
sensitivity, estimated risks and the complexity of the requirement. The
Selection Criteria must also be published in the Contract Notice so that all
bidders understand the key requirements they must hold before submitting a
bid. The questions in the SPD are aligned to the requirements of the
Procurement Regulations.
4.6 Under the SPD, bidders are asked to confirm they have met all obligations
relating to the payment of taxes, both in the UK, and in the country in which
the bidder is registered, if that is not the UK. Where the bidder has been
convicted of not paying taxes, they are required to submit certification
confirming the subsequent actions taken to address non-payment. The
Council has the option to exclude a bidder convicted of non-payment of taxes
where suitable measures have not been taken to address the non-payment. 
4.7 The Council has a documented process in place which enables compliance
with IR35 in terms of where the Council engage with a worker either directly
or via an agency / 3rd party to assess the tax status.  Where the Council
engage (and are paying) directly with the worker and the assessment
determines that taxation is due, an internal process exists to comply with this
requirement.  Where a determination places responsibility for taxation on an
agency or other 3rd party, the Council are obliged to give notice of this.  The
Council as with any other organisation, has no means of ensuring that an
external company is compliant with IR35 regulations.
4.8 The Council does not use offshore vehicles for the purchase of land and
property and will continue to ensure that land and property transactions are
tax efficient. 
4.9 The Council has a documented process in place which enables due diligence
of not-for-profit structures. The online Mandatory Charitable Rates Relief
application process is undertaken and the application seeks supporting
information to conduct a review of the declarations made. 
4.10 The FTD pledge is to undertake due diligence / extra checks which will result
in additional work for Council officers, when ultimately the Council is unable
to act.  For example, even if the Council were to uncover significant off shore
tax avoidance by a company, there is no grounds in the Procurement
Regulations that would allow the Council to exclude that company from
bidding.  
4.11 As referred to above there are areas of the pledge where the Council can
promote and support the FTD pledge, but to accept it in full in its current
wording, would require additional resource commitment that would not add
value and, potentially could result in an unlawful decision. 
5. People Implications
5.1 Approving the FTD pledge would require additional resources whilst the
Council would be unable to act on this FTD pledge due to regulations
circumscribed by law.

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6. Financial and Procurement Implications
6.1 Financial – as stated in paragraph 5.1.
6.2 Procurement - as stated in paragraph 5.1.
7. Risk Analysis
7.1 Approving the FTD pledge would put the Council at significant risk for
challenge from court, press, regulators, auditors and / or the public.
7.2 As part of the Council’s annual audit planning process for 2022-23, there is
a risk-based review being undertaken in relation to IR35 compliance.  This
is a corporate review and will involve all services looking at the use of
consultants, agency staff, etc. 
8. Equalities Impact Assessment (EIA)
8.1 There is no equalities impact.
9. Consultation
9.1 Consultation took place with Council officers from Legal Services, Audit
and Fraud Services, Finance Services and Business Support Services.
9.2 Officers had discussed the FTD pledge with City of Edinburgh Council.
9.3 Officers have asked the Scottish Government for comment on the FTD
pledge and any government initiative to review Fair Tax. The Scottish
Government are yet to respond.  
10. Strategic Assessment
10.1 This report supports the Council’s strategic priorities:  Open, accountable
and accessible local government
Name:  Laurence Slavin
Designation: Resources
Date: 26 October 2022
Person to Contact: Annabel Travers – Procurement Manager
16 Church St, Dumbarton, G82 1QL
Mobile: 07468 481 829
e-Mail:  annabel.travers@west-dunbarton.gov.uk
Appendices: None
Background Papers: Councils for Fair Tax Declaration:  Scotland
Wards Affected: All