Myths of the Rangers FTT Result – An Occasional Series – Part 1 – Dr Poon’s Dissent

The Rangers saga will make a number of exceptional case studies, covering numerous areas of law, together with PR, journalism, and even some football!

The comments which have flowed like lava from Krakatoa (which is west of Java, despite the film title) since the declaration of the FTT result are a fine example of the way in which people, on the Internet and in the media, fit the facts into their own narrative, rather than the other way about.

It is a human trait to do so, and I am sure I have been guilty of it myself.

One area of comment I have seen popping up over the last couple of days relates to the dissenting opinion from Dr Heidi Poon, and the status of that opinion.

The narrative which is being pushed and indeed is being believed runs as follows.

  • The dissenting opinion was only published in an appendix and therefore is not part of the decision.
  • It is therefore of no importance in the case and can be disregarded.
  • The majority opinion ignored what Dr Poon had to say because her decision was in some way nonsensical and not worthy of analysis.
  • Dr Poon is not a lawyer and therefore her opinion can be ignored because the two lawyers on the panel reached a different conclusion.

One of the confusing factors about judicial decision-making is that judges can reach the same conclusions but for different reasons, or even follow the same analysis but reach a different conclusion.

It is unusual for there to be a dissenting judgement in the FTT, but it is also unusual to have a case last as long as this one. The vast majority of FTT (Tax) Appeals are dealt with in one day before one or two panel members. It is rare for three such experienced individuals to make up a panel in a case at the FTT.

We need to look at the potential appeal process now. It would run as follows.

  • From the First Tier Tribunal, with leave, and on a question of law only, the decision can be appealed to the Upper Tribunal.
  • From there an appeal lies on a point of law to the Inner House of the Court of Session.
  • Finally, the decision of the Inner House, on a point of law, can be appealed to the UK Supreme Court.

Normally the Upper Tribunal sits with one judge alone. In cases of importance or complexity, the Tribunal can be expanded. Bearing in mind the importance of the issues decided here, if HMRC decides to appeal, it is likely that a three member Upper Tribunal would be convened.

From there, the Inner House would have at least three judges hearing any appeal and finally the UKSC would consist of at least five members.

Therefore, if the case goes through all of its stages, the matter would have been considered by at least fourteen judges.

The question “what is the law” is one which has generated millions of pages of analysis. I do not propose to add much to that, but one simple (hah) analysis is that “the law is what the judges say it is”. That is fine at first hearing, but on the principles in this case, it would be possible for the results to go as follows.

  • FTT – Rangers/MIH 2 – 1 HMRC
  • Upper Tribunal – Rangers/MIH 3 – 0 HMRC
  • Inner House – Rangers/MIH 3 – 0 HMRC
  • Supreme Court – Rangers/MIH 2 – 3 HMRC

(I am not predicting the outcome of any of these appeals – this is designed as an illustration.)

If you were using the aggregate principles of football, HMRC would be on the end of a thumping 10 – 4 defeat.

But, in the legal world, and therefore in the real world, HMRC would have won, even if the three judges who found for it in the Supreme Court did so on entirely distinct and indeed inconsistent grounds!

What then would “the law” be on this issue? As for the particular case, it would be the majority verdict. However, if the Upper Tribunal overturns the decision, then the law will be, and will always have been what the Upper Tribunal decides. If the Inner House then overturned the Upper Tribunal, the law would be changed yet again, but equally would have been the same all along, and similarly with the Supreme Court.

As for future cases…it would need either legislation to clarify the issue, or more likely more cases where subsequent judges tried to make sense of the potential fourteen different decisions in this case.

No wonder people say that the law can be confusing.

As this case contained very detailed analysis of the “form over substance” v “substance over form” debate, as per the Ramsay case, it would not be surprising if there was a desire by HMRC for an authoritative ruling.

Imagine that, right now, you were a tax adviser (ignoring for a minute that the tax advantages of EBTs have been ended by primary legislation) how would you advise your client on the use and management of an EBT scheme? Follow the majority opinion and find, if overturned on appeal that you, as the adviser are being sued for giving bad advice, or follow the minority view, only to find that HMRC drops the appeal before a final hearing?

Issue like this show why, despite the attractions of the “legal realist” theory that “the law is what judges say it is”, the issues are never so simple.

Dr Poon’s decision is an integral part of the verdict. To a large degree, it would form the basis of any HMRC appeal, and is clearly on a matter of law, as Dr Poon disagreed with the majority on the interpretation and application of the legal issues in the case.

Judicial decision-making is a collaborative process too. The judges are not locked in sealed rooms, with no contact with each other, until they produce a decision. Instead they meet to discuss the case, and to test each other’s arguments. The aim is to reach a unanimous decision but that is not always possible, as we see here.

Because of the nature of the FTT, the decision is not binding as a precedent on any other FTT. One can well imagine, until there is an authoritative decision on the principles (not the facts) that the majority and minority opinions will be cited in any similar cases, and the judge or judges hearing them are free to follow one or other, or indeed to arrive at a third analysis.

This all leads to the specific narrative – Dr Poon is not a lawyer so no wonder she was “wrong”. Some of the comments I have read make it sound as if she was there on a YTS and somehow infiltrated the hearing room and joined the panel that way!

There was even a comment suggesting that Dr Poon was clearly the source for the alleged leaking of documents to the Rangers Tax Case blog because Dr Poon was the only member of the Tribunal to “agree” with RTC! There is a lot of nonsense spouted on the Internet, but that is up there for “the most ridiculous suggestion of the month award”.

Dr Poon is a distinguished Chartered Accountant with a legal background, including time spent working with one of the country’s leading legal firms. She is an experienced member of the FTT panel. She is a professional Judge.

Does anyone seriously think that, when deciding which three members were to make up the Tribunal, the thought process was as follows – “Well, we have a brilliant tax QC, an eminent tax lawyer, and let’s throw in a numpty to make up the numbers!” I suspect not.

However these “facts” are being repeated every minute on the web, and in the media. And they are not the only ones where what is being said is not “fact” but “fiction”…

Posted by Paul McConville

 

 

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84 Comments

Filed under HMRC v Rangers, Rangers

84 responses to “Myths of the Rangers FTT Result – An Occasional Series – Part 1 – Dr Poon’s Dissent

  1. “Dr Poon is not a lawyer and therefore her opinion can be ignored because the two lawyers on the panel reached a different conclusion”.

    By God you’ve got it.

    • Buddy Morrisey

      Alex
      Try reading the blog first
      “Dr Poon is a distinguished Chartered Accountant with a legal background, including time spent working with one of the country’s leading legal firms. She is an experienced member of the FTT panel. She is a professional Judge.”

      “The narrative being pushed and believed … ” Reality who needs it?

      Paul – Isn’t it obvious. Heidi Poon is RTC!

      • You try reading, she has no legal qualifications, a bit like a mechanic trying to tell a brain surgeon how to operate.

        • Alex,

          So Dr Poon was unqualified to be on the Tribunal then? Is that your view?

          • I really don’t think I said that at all, perhaps you think she is more qualified in tax law than the sartorial Kenneth Mure QC.

            • Alex,

              You did say – “You try reading, she has no legal qualifications, a bit like a mechanic trying to tell a brain surgeon how to operate.”

              I took that as a suggestion that she was as qualified to be on the Tribunal as a car mechanic would be to do brain surgery. Clearly I misunderstood you.

              And each judge is of equal weight – Mr Mure does not get 1.5 votes because his brain is particularly big.

              Rangers/MIH got by far the better of the appeal. That is not disputed here. However there is already an alternative reality being created, and your comments, unless I misunderstand them, fit in with that.

              I am merely trying to shed some light on the dark legal corners of the decision and the related process, and from a legal point of view, even ignoring everything else, the different treatments of Ramsay would be of great importance, even if it was HMRC v Arkwright’s Corner Shop Ltd, with Granville having an EBT to pay for his bicycle clips.

    • By God you didn’t get it.

    • ecojon

      @alex

      I have lost count of the number of times I have asked for a YES or NO answer to the following simple question:

      If Dr Poon had formed part of a 2-1 majority verdict in favour of Rangers would you have rejected that verdict?

      It really is a simple question 🙂

  2. Charles docherty

    I heard rangers accepted that over 30 of the EBTs were taxable thus weren’t considered in the case ,,what does this mean regarding these EBTs ?

    Are rangers admitting they were payments not loans?

    • There was specific acceptance that five players received payments via the Trust structure which would render those specific payments taxable. There were other cases where the detail of what happened mean that the general majority principle was not to be applied, but the details of these were not contained in the decision.

    • What it means if anything, pay attention to the last sentence.

      Accordingly, the assessments made fall to be reduced substantially. It was
      conceded that advances in favour of certain players are taxable and liable to NIC, and
      35 we have found that in certain other limited instances, there may be a similar liability.
      To that extent the assessments should stand. In these circumstances we expect that it
      is sufficient that we allow the Appeal in principle. Parties can no doubt settle the
      sums due for the limited number of cases mentioned without further reference to the
      Tribunal.

      • @Alex

        The fact that the assessments may be reduced (substantially or otherwise) means that the Tribunal was not “won” by RFC(IL)/MIH – there is tax/NIC to be paid ergo these instances were proven (for want of a better word.)

        Your stance is similar to the petty thief who attests that “It couldnae have been me that stole that motor, I was robbing a hoose on the other side ae the city at the time.”

  3. @ Adam

    Feel free, if you wish, to let us have your “long form” thoughts on where any or all of the issues stand today and I will pop it up as a guest post.

    You can email me if you want to do so.

    As for the confusing structure of the blog – I always found RTC’s was problematic for following a discussion as all the comments simply dropped in in date order. Here there are threaded discussions for a few comments, but if you simply allow never ending threads under the one post, it gets equally confusing.

    I therefore selected the worst of both worlds!

    And I like to think of this as a broad church (in a metaphorical sense) and no one forces you to read any particular commenter if you do not want to.

    • Adam

      Thanks for the invite Paul but im afraid i dont have the writing skills that you have and would not be able to sculpt such a full article. Im more of a Q & A man so if you have an idea for a Q&A piece from a “Rangers supporting” view then happy to participate by email.

      Despite what others think, i am able to give a non biased view if i truly believe it merits it.

      • ecojon

        @ Adam

        You don’t actually need much in the way of writing skills as can be evidenced by reading some of my articles.

        What is needed is just IMHO a wish to put a position forward and see what the reaction to it is. I have made my own thoughts clear on your Q&A strategy but each to their own although one must be careful not to artificially pose a question that will elicit a specif answer in reply especially if that answer is wrong or poorly researched.

        I think you expose a real problem in objectivity v. subjectivity when you state: ‘i am able to give a non biased view if i truly believe it merits it’.

        I take a different approach and try to give a non-biased view without necessarily believing in the merits of that view or otherwise. And at the end of the day the perception of any view held by someone will be judged as to its bias depending on the viewpoint of others.

        It is often impossible for the proponent of a view to recognise by themself that there is an inherent bias in it. That is why it is good to test one’s position by putting it forward and honestly contemplating the answers and comments received.

        Even the most abusive and negative comments may have some value in better understanding the propositions you advance and all comments prove a valuable part of the self-learning process which has a lot to do with the free-form nature of the discussions rather than operating in the sterile tramway of a Q&A format.

        That is my position as it happens to be at this moment in time and it may be different later today or tomorrow and it may even change back to where I started from today in a week or month’s time.

        Rigidity of thinking is a real enemy to thought, problem solving and developing ideas IMHO.

  4. rangers were cleared , end of ,dr poon is a very clever and intelligent , but , is not a legal expert ,and i think i am correct i saying that any appeal will have to be on a point of law , celtic fans must really get over this and their hatred shown towards rangers it is actually eating some of them up , and as ex celts ,hartson,macnamara ,burley,provan and davie hay have stated the titles were won on the field of play ,do celtic fans want the title they lost at motherwell ? rangers will come back in time and we will have a real fight for the title and if they dont and are forced to play on the streets , we will stand on the pavements .

    • Carson,

      Good to see you – on a break from Downton Abbey?

      You say “end of”. It might not be, if there is an appeal, as the Sunday Times reports is highly probable.

      As my long-winded post last night said, the FTT decision is of little relevance to the SPL Independent Commission. They are looking at entirely different things. Equally the FTT was not about re-writing the record books.

      And do you believe that Dr Poon was unqualified to be on the Tribunal?

      • i do believe dr poon to be highly qualified just not in legal matters , and how can you re write history ? make scott mcdonalds goals offside ! again you have to move on it is eating away at some bhoys n ghirls , i and many other rangers fans are looking forward to the future i firmly believe our club will only get stronger and with my hand on my heart i honestly think in five years time this saga will be a matter for point scoring and ribbing between fans and the old firm will be back at each others throats going for title of value , the celtic fans on some phone- ins last night sounded more p****d off than us , why ? and the only abbey i know of is buckfast .

        • Merciatic

          The main thing is that Rangers were liquidated and lost their history and could still be stripped of the titles they cheated to win. The fact that they won the tax tribunal doesn’t eat me up but makes it all the more delicious; as, if the directors were more honest in there actions it could all have been avoided. Tee, hee!

        • Budweiser

          @ Carson- aaah- Buckfast- used only as a ‘tonic’ wine I presume?

    • johnnym

      Is this the best you can do? A few ex-footballers said xyz therefore……ask an ex-footballer what the word ‘analyse’ means and they’ll have a heart attack, ask them to explain the current handball rule and they’ll respond with…..well i’ve seen them given. Ex-footballers are great….when we’re looking at their Best of DVDs. In terms of interpreting complex situations they’re as useful as the proverbial chocolate teapot….we all know how to read between the lines of what the FTT tribunal actually said. In the same way as pre-verdict ‘ra berrs huv dun nuthin wrang til wur prooved gulty’ , you’re not off the hook til the HMRC appeal, the SLP and BDO investigations are completed 🙂

  5. “And each judge is of equal weight – Mr Mure does not get 1.5 votes because his brain is particularly big”.

    Equal weight does not mean of equal ability, let me ask you again directly…do you think she is more qualified than Mure and more knowledgeable on the intricacies of tax law.

    • By their presence on the Tribunal, that is proof that all three judges have being assessed as being of sufficient skill, knowledge and expertise to deal with the issues before them.

      I am not trying to claim that Mr Mure is better or worse than Dr Poon. My opinion – and indeed anyone’s opinion, on that is irrelevant to the judgement.

      If you want to argue the comparative skills of the Tribunal members, then feel free. However your mechanic/brain surgeon example surely is not the differing levels of expertise you attribute to them, is it?

      • It is a simple question which you seem very reluctant to answer let me repeat it..do you think she is more qualified than Mure and more knowledgeable on the intricacies of tax law.

        A simple yes or no will suffice.

        • Alex, if this is any help… My sister and her husband are both accountants well-versed in tax law. My brother-in-law is an expert in tax law and actually earns much of his living giving lawyers updates on changes to tax law as they arise. Given that accountants are better placed to see how another accountant would apply tax law to an accounting issue, I’d say that in this scenario an expert in both law, tax and accountancy would probably be expected to be better than one with just the law and tax boxes ticked.

          Therefore I’d imagine that Dr Poon is probably in a better position to give a verdict on this case, as it centres on how tax and law has been applied by accountants.

          However, as it has been pointed out here and elsewhere, the idea of the three-person tribunal is that they discuss all these matters between them, so each will benefit from the knowledge and views of the other two before making their decision. Pretty sensible, when you think about it.

          Again, this is one of the reasons that, in this case, the fact that there is a substantial dissenting argument – and one that has not been addressed or argued against by the majority – is very significant, as Paul points out.

          • What’s up can’t Paul answer for himself ?

            As for advice or direction from you or your relatives I will pass on that, otherwise I would tend to think I had a wasted education and career.

            • Eh? You think we live together or something? Was just trying to be civil, have a friendly, adult, sensible debate, being helpful – whatever, you obviously will ‘pass on that’, alex (and I’ll ignore the dig about my relatives). No doubt your education and career were/are fantastic and you don’t need to learn anything more, ever. Anyway, stick to your guns mate, be happy in your own world – I’ll just stick to debate here about the real one. Bye

            • Maggie

              @Kenny Mc Caffrey
              Oh dear Kenny,obviously Alex received no education in manners.
              How many more of the ad hominem attacks on Dr Poon
              do we have to listen to? Car Mechanic!!!!!!!! Dear God.
              I wonder had Mr Mure QC been the dissenting voice of
              the tribunal then he,of course,would have been the recipient
              of the ad hominem attacks along the lines of ” what does he
              know,he’s a QC and knows nothing about forensic accounting,
              that Dr Poon burd,she’s the one that really knows her stuff
              ’bout taxes AND she’s a Dr so she can gie ye a script tae!
              Result!”

      • ecojon

        @ Paul

        I’m naw a mechanic or a brain surgeon although I did think aboot dayin the brain surgeon’s course at night skool.

        But whit I demand to know is how dae I get onto wan oh these tribunals and whit’s the money like?

        Ah reckon ave goat aw the qualifications as I write things that get loads a bluenoses going nuts. So whit dae ye think? Hiv a goat a chance? A doan’t know onything aboot ra law but a watched aw the Rumpole o’ the Bailie re-runs but ah kin count and know ma tables.

        PS: No need to reply Paul 🙂

    • wottpi

      Alex
      If HMRC were to appeal the FTT and it went all the way to the Supreme Court and they won would that, in your eyes, make Dr Poon more qualified than Mr Mure in the intricacies of tax law?

      If they won in the HMRC Upper Tier and Rangers (IL) failed to lodge an appeal to take things further to the Inner House would you claim it was a win for Poon or an unresolved draw and that Poon and Mure were of equal ability??

  6. redetin

    “We have been unable to reach a unanimous view.”

    We = The Tribunal ie acting as a unit.

    And they presented the two views. Except that it was called a “dissenting” view, there was no attempt to criticise or to reduce the validity of Dr Poon’s view. The Tribunal wanted Dr Poon’s view to be seen and heard.

    • Her view was irrelevant, it was on the losing side.

      • Dr Poon’s view is not irrelevant. It makes it clear that there is a legal issue justifying a hearing at the Upper Tribunal, should HMRC decide to go to appeal.

      • Paul – at what point does wilfull ignoring of the facts, of posts attempting an honest reply to questions and abuse of a third party (Dr Poon) become trolling?

        I demand to know ;o)

        • What ? you mean the fact that MIH/Rangers carried the day.

          • There was only one loser in the Big Tax Case – Oldco Rangers – you quoted earlier that the tribunal stated: “Parties can no doubt settle the sums due for the limited number of cases mentioned without further reference to the Tribunal” which means that Oldco Rangers owes HMRC money, not the other way round right? And that’s on top of the Wee Tax Case that Rangers under Muuray didn’t contest as well as the taxes owed under Craig Whyte’s brief tenure at Ibrox.

            As for your repeated attempts to get someone to say Dr Poon was a lesser member of the tribunal I think quite the reverse – she, as a tax expert, was on the panel precisely for her expertise in that area. And as such, she could see the EBTs were set up for no other reason than to avoid tax. No-one (not RTC, not Paul, not Phil MacG) has said that EBTs themselves were illegal but the view of most people was the way Rangers used them was against the rules. In this context I am disappointed that the ruling was more of the letter of the law than the spirit of the law – seems to me that the lawyers were focused only on the structure of the EBT not on its purpose.

            It’s like the old adage “guns don’t kill people, people do” – well to me it seems “offshore tax vehicles don’t avoid tax, people do”…

            Personally I think HMRC have a good shout for an appeal… but i’ve been wrong before.

        • mcfc

          alex@thekublakhan is an anagram of “Exhale Ah Talk Bunk”

  7. Nicely put Paul, I find the analysis really helpful, especially given the woeful reporting that continues especially at this important part of the case. It would be interesting to see ‘public interest’ arguments being compared and contrasted over the merits of what is printed in national newspapers and what is posted on helpful blogs (written by people with some training relevant to the subject).

    Keep up the good – and necessary – work.

    @alex, you are obviously taking my advice of a previous post and reading what you want, or like. But plesase, try expanding your mind a bit and actually read what are helpful, very reasonable, easily understood posts by people who give us all a good insight into the intricacies of the law.

    Alex, for many weeks now I’ve been reading Rangers-leaning commenters criticising this blog for not really being ‘Random Thoughts Re Scots Law’. Maybe they’ve had a point a times(!) Well, it’s doing what it says on the masthead here and now, so why not read and enjoy – I might not agree with the findings or verdicts, but I’m finding the discussion and explanations of what they mean utterly fascinating. I enjoy learning things. If you don’t, why bother commenting here?

    • ecojon

      I don’t know what the ‘rules’ are for the composition of a FTT but it seems obvious that equally as valuable as a legal expert is an accountancy expert who is also skilled in tax law.

      It’s fascinating to watch the pathetic attacks on Poone’s right to be an equal member of the tribunal and, indeed, if her and one of the legal eagles had formed the majority decision in favour of Rangers then she would have been a hero for the Blue Hordes.

      Her expertise in the real world outside the ivory tower of a court room would be hailed by the Ibrox support and the dissenting legal voice would be attacked on all sides while his genealogy was investigated with a microscope. It really is a very skewed perspective.

      Perhaps it might help some if they look at the set-up of Employment Tribunals where you would have a legally qualified chair and two other lay-people. These lay-people usually consisted of one representing the Employer side and would be a business person/member of the local Chamber of Commerce.

      The other lay person would represent the worker side and be a trade union rep or full-time official. The tribunal worked on the basis that the chair was master of the legal questions and the two lay members were there to provide the personal experience of the workplace from different sides.

      Interestingly each vote had the same value and of course any error in terms of points of law could be dealt with by the Employment Appeals Tribunal.

      I hope this might help some who appear to be struggling to come to terms with the concept that the ‘vote’ of each tribunal member is of equal weight and also that there is a deliberate attempt to have the composition of a tribunal varied to meet the requirements of the case to be decided.

      Tribunal members don’t turn-up at the tribunal central office and pick pieces of paper out a hat at random to find out what tribunal they are sitting on although there is no doubt that Poone has been handed the Black Spot by many halfwits and that includes a lot of the MSM.

      • Adam

        By the same token, if the result was reversed(2 judges against Rangers, Poon for) then the overwhelming of Online Celtic fans would be completely discounting Poon’s view and all the arguments would be in complete reverse.

        And again, that is an indisputable fact.

        • ecojon

          @ Adam

          I don’t think I would go as far as ‘indisputable’ when dealing with a hypothetical case but in general I would agree that your scenario would be very likely. I would hope that a significant number of the Celtic support would examine all the arguments presented and hold-fire on celebrations until the decision was reached as to whether there would be an appeal.

          I say that on the basis that could soon be a problem for Rangers fans if an appeal is granted – there will obviously be a helluva deep emotional battering and then the whole psychological roller-coaster played out yet again at the Upper Tribunal which, at least, will be relatively more speedy than the FTT proceedings.

          I have thought from when the Rangers FTT Decision was published that the really interesting question is what would Murray do if the Upper Tribunal found in favour of HMRC – would he appeal or is it a case that he can’t afford not to?

        • OMG adam a more blatant “hypothetical whataboutery” would be tough to find. And that IS a fact! I wouldn’t say indisputable, after all there are flat earth adherents, global warming doubters, holocaust deniers and those that think Rangers have existed since 1874!

  8. Paul,

    thanks for the excellent post.

    One question on the appeal process. I understand that the appeal ( to the Upper Tribunal) would be on a ‘question of law’, but you firstly mention ‘with leave’. From whom is ‘leave’ granted? The FTT panel?

    • Looks like on further googling it would be the FTT panel that grants leave to appeal to the Upper Tribunal.

      Not sure If leave to appeal has ever been refused, Then again FTTs are usually presided over by one judge so the process is more complicated than usual.

      I guess we’ll find out if HMRC asks for leave to appeal.

  9. Mick

    What a great weekend were having with all the balanced factual thoughts in the articles after a week of deflect by msm

  10. Mick

    The broad sheets are running with words like pheniox and appeal Murray must not include hem in the lamb feasts they have with the west coast tabloid msm

  11. Buddy Morrisey

    Alex
    Your esteemed Mr Mure does not regard Dr Poon’s opinion as irrelevant.

    Is he wrong?

    • No, he along with S A Rae, LLB prevailed in favour of MIH/Rangers, that is the decision, did you miss it.

      He very obviously thought Poon’s decision was wrong, perhaps you missed that also.

      • Alex, please read everything properly, not just the stuff that you think backs up your view. Are you Jabba in disguise?

        • gogogo

          alex

          dr poon says what she thinks is wrong with the majority decision…..

          the majority said nothing about the minority other than it exists…. they could have said why they think it wrong and did not. so we know they think it valid, but dont agree with it.

          • ecojon

            @ gogogo

            That’s why all this attack on Poone’s legal credibility is just such p*sh. If she had got anything really wrong in her dissenting opinion, especially in legal terms, then the other two would have buried her in their Decision.

            So, to me, that leaves the possibility that they do not agree with her decision on a specific point or number of points but can’t fault the reasoning she employed to reach her conclusions.

            Or, they might agree with all of her points but prefer their own view over her’s which in that curious legal sense allows both the majority decision and the dissenting opinion to be used by others sitting in judgement to determine totally separate cases.

            Those who decry Poone don’t seem to be able to accept the simple fact that another hearing on another case could use her opinion and discard the majority one to arrive at a decision. We are in a legal twilight zone – watch out for further zombie judgements 🙂

        • ecojon

          @ Kenny McCaffrey

          I have a fairly low view of Jabba’s intellect but I must come to his defence on this occasion and say, without hesitation, Alex of the smoke-filled opium dens is not Jabba.

          But there is some similarity with Alex and the story of the Coleridge poem of Kubla Khan whereby he forgot the ending of the poem and it was never actually finished. I think this too may come to pass with Alex in that the final ending will be so cataclysmic that the last brain cell will shut-down and mercifully he will lose all memory of the result.

        • Maggie

          @Kenny Mc Caffrey,
          All that education,yet still the higher order reading skills
          and critical thought processes escape him.
          Must have been absent the days these were taught in P7

  12. Mick

    Even at intermediate level in business you get law modular or bean counters are taught law corparate business law is part of any business education Adams rubbishing of bean counters stature in the verdict is wrong

  13. Mick

    The result was a pass on stunt we now have a business view in it all as well. As a legal it will be that that is viewed in upper

  14. Sir Nicholas Fairbairn

    The FTT can grant or deny leave . If denied Hector can request leave from the Upper Tribunal directly and their decision to grant or deny would be final . Error in law is broader than just applying the wrong regulations or applying the wrong case law it extends to failing to make proper findings of fact, giving inadequate reasons for the decision, or making a decision that no reasonable body would make. As FTT majority decisions are pretty rare its almost certain that the Chair will grant leave . In reality all split decisions are granted leave if it is requested.

  15. Sir Nicholas Fairbairn

    Some further points ; all FTT judges are appointed by the Crown and enjoy equal status and all speak with an equal voice. Cases are allocated to Judges with respect to their individual expertise . Dr Poon’s minority view is equally as valid as the majority view . In this case her view was opposed by the majority and therefore they prevailed as far as this judgement is concerned.

    • You appear confused for one so ahem knowledgeable, there is only one judge that in this tribunal was Mure.

      Tribunal judges are legally-qualified. Tribunal members are specialist non-legal members of the panel and include doctors, chartered surveyors, ex-service personnel or accountants. Tribunals often sit as a panel comprising a judge and non-legal members however in some jurisdictions cases may be heard by a judge or member sitting alone.

  16. cam

    FIGHT FANS!!!!
    To the sound of “Simply the Best”
    In the blue corner,fighting out of Govan Glasgow weighing in at 134 million pounds,with a record of 54 wins all by K.O,ladies annnnd gentlemen.i give you the one, the only,undisputed heavyweight champion of the woooorld,THE TERROR OF THE TAXMAN,the Ibrox Iceman,The Mighty Glasgow Raaaannngggeeers!

    To the sound of;”Always look on the bright side of life”

    In the green corner,fighting out of cyberspace near Parkhead Glasgow,weighing in at(its a secret),with a record of 0 fights 0 wins all by running away,lads and lassies,i give you the one ,the only, hotly pursued lightweight champion of sweetie wifery,Hectors Helper,The Prophet of Doom,The Lonely ARRRRTTTY CEEEE!

    “Well Harry how do you see this long awaited grudge match going?”
    “The talkings over now Frank,the bad mouthing can’t help now. its all down to training,technique,stamina,skill and the will to win,we know the champs got that in spades but the challenger looks to have his number if the rumours are to be believed”
    “How do you see the fight developing Harry?”
    “The champ has got to impose himself early on,take the fight to Arty and see how he stands up to a straight jab.So far he has only talked from outside the ring but he does talk a good fight”

    Bell sounds
    “Here we go folks, the champ is sticking behind that long jab keeping the smaller man at distance and Arty is gonna have to take chances and step in to land his blows”

    “Well we’re in round three and the champ is in control,hang on ,,Arty has just landed a low blow but the champ is waving him on.”

    “Round six and its still to close to call,the challenger is on his bike,hitting and running but the champ is holding centre ring,stalking his opponent”

    “Arty is blowing hard now in round nine,the champ has begun to deploy his trademark punch “the Truth” and Arty is looking to his corner but Pauli and Filipi are looking towards the exits”

    “Final round and the champ is well ahead on legal points,Arty is on the ropes and is being shouted on by a female fan in the crowd”

    “The bell signals the end of a hard fought bout which never really took off due to the challenger refusing to trade punches”

    Ladies and gentlemen we have a majority decision!
    Judge Mure scores it 120-110 RFC
    Judge Poon scores it 118-112 Arty C
    Judge Rae scores it 119-111 To the still undisputed champion of the FTT the mighty Glasgow Rangers.

    postscript; due to much gnashing of teeth and greetin in the east of the city and an inherent tendency to cry foul,a rematch is being called for and new judges installed by fans of the now diasappered Arty C.

    to be continued,,,,

    • Buddy Morrisey

      Cam

      Aye very good ! 😉
      You did miss out the bit about your Champs being willing to throw the fight for £10 million just as it started and their attempt to postpone the bout as long as possible. Just wait for the re-match ! 🙂

      • cam

        nice one sir!,,,reports of the re-match being held in Dublin and being sponsored by ESPN and the SPL are being poo poohed and of course we do need an opponent!

  17. angeblue55

    It makes you all feel better to concentrate on it being a majority verdict not a unanimous one, The appeal has gone in Rangers favour. You can bump your gums about it from now till Kingdom come. It wont make one bit of difference. Get over it.

    • cam

      Angeblue55,,,,may i introduce myself,i am known in here as Cam the bam as i fight out of the blue corner,i have taken many blows in here and at times been pretty punch drunk but like every good bluenose the knee will never bow.
      A word of warning if i may,, if you spend too long in here you will find yourself under attack from two guardians of this temple of insanity,,the dreaded tag team of Eco and mick,skilful exponents of the ignoble art of internet bampottery,these two will force you to employ the services of a qualified therapist.
      Now Ange,,,unleash hell!

  18. thedailyranger

    Dr Poon’s dissent centers around the application of the Ramsey principle and that a wider view should be taken of the Trusts and their inherent intentions. I quote “I have highlighted areas of conflicting evidence and drawn my conclusions as to what I regard as the real nature of the transaction.”

    Not to disregard Dr Poon’s input but as you have stated she is a Chartered Accountant and as such is bound to have differing views when it comes to matters of law vs accounting.

    Unfortunately though neither HMRC or Dr Poon could produce any actual evidence to prove ill intentions of these Trusts. Instead focusing on the reliability of the witnesses and a general view that Rangers and MGHL were ‘at it’.

    In other words if this were a murder trial Mure and Rae would have found Not Guilty due to lack of evidence and Poon would have found Guilty because the defendant looked a bit shifty.

    This is her right as a FTTT panel member to draw whatever conclusions she wishes however the two lawyers in the room were happy that the Trust scheme was operated within the boundaries of the law. I think Mure and Rae knew fine well that applying the “looks a bit shifty” yardstick would open a can of worms that would have repercussions across the business world.

    I do find it interesting though that you focus on the minority dissenting voice rather than the majority. I wonder if you would have written such a defense of Mure if Rae and Poon had decided against Rangers/MGHL with Mure being the dissenting voice?

    • ecojon

      @ thedailyranger

      I suggest that you read Poone’s opinion more closely than you appear to have done so and, in particular, the emphasis she gives to the documentary evidence – of which there is a huge amount – and the evidence of the witnesses and also the obstructive behaviour of the Appellants.

      I would say that she appeared to be laying the foundations of the appeal in that approach and there is a corresponding lack of this rigour in the majority Decision IMHO which has concentrated on a non-appealed legal argument from a court whose decisions aren’t binding on the FTT – this point is also referenced by Poone I believe from memory.

      But one of the really interesting issues to me is why the HMRC didn’t attack the trusts as ‘shams’ as there appeared to be enough evidence to make a fist of that case. However Hector was quite clear that they weren’t ‘sham’ and I would love to know what the significance of that is.

      It is obviously of importance to HMRC but I do not have the legal ability to work out why. However, it is over to Hector to see if they appeal and if not the curious legal situation persists that other cases and courts can use either the minority or majority opinions as the basis for deciding other case.

      Seems wierd but that the law and I doubt if many ordiunary people can get their head round that concept – I know I have difficulty.

      • thedailyranger

        Yes I take your point, Poon knew fine well that it was a tax avoidance scheme, as did Rae and Mure. However it’s not about what you know it’s about what you can prove.

        HMRC have been farcical in the pursuit of this case but then they don’t seem to have a very good track record with this being the second time in recent memory they’ve lost a high profile case…Harry Redknapp anyone?

        Yes I did pick through her lengthy 85 page appendix strewn with statements like “Finally, there does appear to exist a layer of camouflaged clothing’ over thereal arrangements, and this has rendered the task of ascertaining ‘the real nature of the transaction’ more arduous and complex.”

        As I said above she thought Rangers/MGHL were ‘at it’ and she’s probably right. But then there are a lot of companies who are ‘at it’ and they take considerable care to make sure it stands up to legal scrutiny.

        Again knowing something and proving it are two different things.

        Personally I doubt HMRC will appeal, I think the time and money wasted so far in such a public defeat will deter them from going any further. I might be wrong though but ultimately they’d just be presenting the same non-evidence to even higher members of the Tax Tribunal and hoping they agree.

        • Harry Redknapp’s case was a criminal prosecution. This was not.

          Here HMRC tried for a long, long, long time to get information from oldco (I use the term so as to avoid any confusion with the existing company). Oldco was less than co-operative, it seems.

          Tax assessments were issued in 2008 and 2009. Oldco/MIH appealed, and after “sundry procedure” oldco/MIH got by far the better of the decision, although some tax was admitted to be due and the tribunal found some other cases where it should be paid too.

          So, Rangers “won” because their liability was decresed significantly.

          HMRC “won” because they got more money than if they had not made the assessments at all.

          Since the asssessments in 2008 the case has been continuing because Rangers appealed which, standing the majority opinion, was the right thing to have done.

          Now is the first time since 2008 that HMRC have any control of what happens next.

        • ecojon

          @ thedailyranger

          I won’t deal with Harry as paul has already pointed out that’s an apple and oranges affair.

          None of us know whether HMRC will appeal or not or indeed what the result might be. I hear what you say about waste of ‘public money’ and won’t go on at length at the waste of public money in terms of the IT and NIC that Rangers have failed to pay overall. There is also the fact that for the decade covered by the BTC Rangers didn’t pay a penny in Corporation Tax despite having very large turnovers which from memory must have been in the £50 million region per annum.

          However, and I really do appreciate how hard this is for most Rangers fans to accept, the HMRC case isn’t solely about Rangers. It is about winning legal precedents that can be used against other football clubs and other commercial companies.

          The thing about any tax reduction schemes is that if one appears to be successful in getting round existing tax legislation then it’s like selling cavity wall insulation – all the spiv salesmen in town are flogging it and earning their commissions.

          But the success is also the weakness because if HMRC can legally ‘crack’ the new scheme then they don’t just get the money back against one company they get it back against every company without spending another penny. And it’s in the broader scenarion that you have to judge the HMRC motivation – it really could have been any company that was picked as the lead case.

          We might never know what cocktail of circumstances put Rangers in the frame but I am fairly sure that all the non-cooperation and what appear to be deliberate attempts to delay and hide might well have helped convicne Hector that here was a company well-worth pursuing.

          I think some terribly bad business decision were taken by the Murray Group throughout this whole episode and I accept they might have been under enormous external pressures because of a global economic situation beyond their control. But nonetheless mistakes were made and they are now clear to see like signposts pointing the way to Rangers almost inevitable doom. But then hindsight was ever thus.

    • Carl31

      Dailyranger,
      Dr poon doesnt produce evidence, HMRC do, as do MG. Dr Poon looks further than the majority decision since she finds further ‘in fact’ than the other two equally as capable panel members. She then find under the law that the appeal should not be allowed. Further case law is relied upon. Dr Poon refers to which case law the tribunal should be bound by, and mentions the hierarchy of tribunal.

      Your interpretation of her opinion and how she formed it, on what basis, is very wide of the mark.

      What are your thoughts on the 5 instances where tax is payable? These instances of not operating “within the boundaries of the law”‘ as you put it?

      • ecojon

        @ Carl31

        There are other areas where it appears to me that problems arise although I haven’t concentrated too much on them but rather on the Rangers players playing football.

        But Mr Black throws up interesting probs as does one or two very senior Murray Group personnel. There is also the question of the Golden Hello’s and Goodbyes and Bonus/appearance payments. But the majority decision seems to sort of glide over these with this kind of nod and wink that go away like good little boys and sort these out and don’t annoy us about them.

        I could be totally wrong but this makes me wonder whether the majority have just decided that all they actually require to do is allow an appeal in principle so that the real appeal can follow. The awkward bits that don’t ‘fit’ just seem to have been left. I also suspect that when Murray Group was offering £10 or £11 million to settle the case very late in the day that the figure wasn’t plucked from a chicken’s entrails. It must have been predicated on real cases and perhaps this is where all the talk of the 30 – 35 or whatever ‘missinbg’ cases comes from.

        Again I could be totally wrong and this particulat issue wasn’t helped by the Record leaving the line count info in the article which was just sloppy of the journalists and the sub-editors involved. It was also very sloppy of senior management up to editorial level if they thought that 35 cases + the 5 ‘Northern Towns’ being liable for tax in any was represented a victory for Rangers or the Murray Group.

        But in the final analysis I don’t see this as that important – the crux of the issue is whether there will be an appeal or not – it really is that simple. At that stage we will have Dr Poon’s legal interpretation weighed in the balance agianst that of her two legal colleagues and I know which side of the balance I have my money on 🙂

    • @thedailyranger

      Given the idiosyncracies of Scots law there is of course a 3rd verdict available (at least in criminal cases.) I think the best interpretation of the Tribunal decision isn’t Not Guilty so much as Not Proven.

  19. arb urns

    as usual the devil will be in the detail and there will undoubtedly b further twists and turns in this yet…. from the outside looking in … did the ‘majority’ get the right decision in law… ( if carlsberg did courts)….. it has to be significant though that they used the words ” have to ” in determination and made no comment whatsoever in dissension at the minority view…. it is intriguing that there appear to be 30 trusts/ebts that dont seem capable of falling into the ‘majority’ overall ‘principle’ decision. i may be wrong but to qualify for an ebt payment one would have thought you would need to be an employee of a company and not managing an english premier league club at the time a payment was made into your trust but perhaps this is an example of one of the 30…. who knows….. it struck me as odd in s and m’s summation that they appeared to attach great zeal to hmrc wishing to be non-committal re the inheritance tax position of the loans come the great day….. it also struck me as odd that s and m in their majority view didnt refer to the alternative type of discretionary trust that is available namely a split trust….. do HMRC now have control of the whole situation with recourse to the following…. appeal to the utt….. insolvency act….. bdo as liquidators…..(carlsberg)

  20. kazanture

    good very good

  21. gordonzola

    Alex, and other bears

    you say that rangers will be back up there within 5 years.

    i have heard anecdotes that some rangers fans took out bets that rangers wouldn’t drop a single point in SFL3.

    Also heard that rangers fans took out bets that rangers would not drop a single point in any of the next three seasons going from sfl3 to sfl2 to sfl1.

    i’ll bet that some celtic fans have taken out bets on celtic winning the champions league this year.

    are you, like the fanatical gamblers, being optimistic?

  22. Pingback: The Green Skeptic | The Daily Ranger

  23. ecojon

    @ gordonzola

    I actually think the question is quite difficult to answer in some ways. On a very simple level if Rangers keep getting the crowds and income then I reckon they should be in the SPL (or renamed equivalent) within 5 years. The key I reckon in this scenario is gaining promotion from the SFL3 which I actually see as one of their biggest stumbling blocks.

    The problems surround the players and their adapting to SFL3 football but there are signs that is happening although it won’t be easy and the signing restrictions are a major barrier but obviously will drop-away which should help progression up the SFL.

    So I don’t see major problems or barriers to Rangers in playing terms but I do in terms of fiances and what happens to the club in terms of ownership.

    So much hangs on the amount not only raised by the share flotation but what happens to that money. It’s impossible to actually know what Rangers’ financial position actually is although I find it very difficult to accept that all the ST money is sitting in a back account. If it is then I would automatically conclude the club must have loans/debts or is running on the fumes of an empty petrol tank.

    But we have been told the club has no ‘debt’ although that is sometimes modified to no ‘external debt’ but chico has never explained the difference between these terms nor indeed whether he has lapsed into one of his Olde French definitions.

    However, I think the real question is how much of the capital raised by the share flotation will remain in the club. That is critical to its survival and development. Chico states that all the proceeds of the float will remain in the club but it appears that shares will have the possibility of dividends being paid dependant on financial circumstances.

    So maybe not a big problem for the future but what about the original mystery investors or shareholders? It would appear the majority of them paid 50p a share and there is now talk that the flotation price per share could be £1.50. That is a tidy sum and if I was a shareholder with only a financial interest in Rangers I reckon I would pocket my profit and wander off looking for another equally lucrative investment in these difficult financial times.

    Of course there have been many conflicting stories about whether the original mystery investors provided loans to Rangers rather than actually ‘investing’ in the club although again chico has said they are in it for the long haul.

    Perhaps they are but there again some investors just want to make a profit turning their investment round, in different opportunities, as quickly as possible.

    But we are still left with the conundrum as to whether the original cash from the mystery consortium was a loan or an investment or started as a loan and was converted to an investment by shares being issued. Indeed there is the declaration by Rangers Director Imran Ahmad of Zeus Capital that 22+ million shares have been paid for and issued to the original conosrtium members although there appears to be further mystery as to which company name is on these shares.

    So, as I said earlieer, I don’t see a great problem in Rangers slogging through the SFL3 and making the Premiership comfortable within 5 years in playing terms. The problem lies IMHO in the flotation and the money raised from it.

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