And so the tax decision about a famous Scottish football club is issued, and it went in favour of HMRC ….
but this is not the Rangers case, but instead that of Falkirk Football Club.
The full decision can be found here – http://www.bailii.org/uk/cases/UKFTT/TC/2012/TC02262.html
It related to an appeal against penalties imposed by HMRC for late payment of PAYE by Falkirk in 2010-2011. The penalty imposed was £11,655.89. The decision gives an insight into what the Tribunal considers to be a reasonable excuse for late payment allowing penalties to be mitigated, and offers a view as to the financial challenges facing football teams in Scotland even before the “Armageddon” © the Scottish Press, of there no longer being a Rangers in the SPL.
The decision states:-
“Falkirk Football and Athletic Club Limited (the Club) was represented at the Hearing by Mr Martin Ritchie, the Chairman of the Club, who gave a wholly credible, honest and clear account of the difficulties that the Club had faced and by Mr Kenny their advisor and also a director.”
It was not in dispute that a number of payments in the year had been late.
“A total of £322,213.97 was not paid on time in the year for the purposes of this penalty and, since there is a sliding scale for penalties, the penalty thereon is calculated at 2% and amounts to £6,444.27. That penalty has been correctly calculated by HMRC.”
If this is the PAYE figure for most of the year, then allowing for payments made on time, on a broad brush approach it suggests that the total wage bill at Falkirk comes to around £1 million, very roughly. This is a useful comparison with Mr Green’s Rangers, where he claims the wage bill is down to only £6 million!
The issue in this case was whether the penalties should be upheld as, if there was a reasonable excuse for the late payment, then the Club might have been able to escape some or all of the penalties.
In considering a reasonable excuse, the Tribunal had to examine the actions of the Club from the perspective of a prudent taxpayer exercising reasonable foresight and due diligence and having proper regard for its responsibilities under the Taxes Acts.
The Tribunal found the facts as follows:-
In summary, the Club had faced a number of serious challenges in 2009-10. One of the major problems was that the club was in the Scottish Premier League (SPL) and suffered from the collapse of Setanta, the TV broadcaster that was due to pay large sums to the clubs in the SPL, and the loss for the Club was of the order of £400,000. The Club’s financial year ends on 31 May in each year. At the Board meeting at the end of that financial year the Directors were made aware that they owed HMRC sums of the order of £83,000. It was minuted by the Board, that the Club required to negotiate with HMRC urgently to seek some form of dispensation, that they needed to speak to HMRC about a payment plan (see the following paragraph). It was remitted to the Managing Director to do so. Previously, the Club had had the benefit of the services of a full time semi qualified person working on their finances but in the cut backs at the end of 2009-10 that ceased and the Managing Director, Mr Craig, undertook that role with the support of, what the Board believed to be, a reputable accountancy firm to whom the payroll function was outsourced. Miss Sinclair of that firm worked at the Club for one day per week.
Since the possibility of relegation intensified the financial pressures, the Board met twice a month instead of the usual monthly meeting. At each Board meeting until July 2010 that debt to HMRC was a standing item. At the July meeting the Managing Director, reported that a payment plan for the historic debt had been agreed with HMRC but the terms of that plan were not reported in full and therefore not minuted. The Board believed that that problem had been solved and it was no longer a standing Agenda item. Therefore, as far as the year 2009-10 was concerned, there was a time to pay agreement (TTP) which was in place and implemented.
Further, since that season they were placed in the bottom few clubs in the League, the Club faced possible future relegation with the substantial consequential loss of income. The Board was well aware of the risks attached to that and had plans in place for that contingency. They were relegated in May 2010. The impact of relegation was considerable but it had previously been identified as a very high risk, they had prepared as well as they could for the contingency and they were aware of and received a “parachute payment” of £250,000 to ease the change process. They had put in place cost cutting measures and had a financial reporting system in place.
The Tribunal was provided with an example of the financial reports, which were provided to the Board for every meeting. It was explained that the Board had asked for these since it was important for the Board to know that the creditors were being managed appropriately. Those papers were detailed. In particular as far as creditors were concerned, the age of the trade creditors was analysed on a monthly basis, the creditors described as “significant” were identified both by name and by age of the debt. The Board received a cash flow report, Profit and Loss account, forecast Profit and Loss account to the end of the financial year and a balance sheet and they were all compared to the Budget, which was set at the end of each year for the following year and then was not changed in year. It was not in dispute that the Club had believed that careful cash management had been crucial because they were trying to “nurse” the Club through to the transfer window in January 2011.
The Board were aware of the cash risks and agreed loan funding from a group of major shareholders which could be drawn down when absolutely necessary: that drawdown was implemented in February 2011 when the size of the debt due to HMRC was disclosed to the Board of the Club.
The Club had other major creditors apart from HMRC and they agreed payment plans with them all. The Finance Report at October 2010, identifies the largest creditor at £39,698 and the longest outstanding was one of just over £12,000 for four months and older. The real issue is that the PAYE debt for May 2010 alone, was in excess of £75,000 and was only paid in 2011, and HMRC is referred to nowhere in these reports produced to the Tribunal. It was confirmed in evidence that the cash flow should have shown payments to HMRC and there may well have been entries in the Balance Sheet.
As is indicated above there was a TTP reached with HMRC in regard to the outstanding debt for 2009-10 and whilst that was adhered to HMRC took no further action in regard to that debt. That was the outstanding issue between May and July 2010. On 21 December 2010, HMRC wrote to the Club threatening to present a petition to the Court to wind up the company if outstanding debts of £308,038.76 were not paid within seven days. Mr Craig replied on 28 December 2010 offering a payment timetable but that offer was rejected by HMRC on 06 January 2011 and proceedings then commenced. There was no TTP for 2010-11 and no approach was made to HMRC about payments for 2010-11 until December, notwithstanding the fact that a Penalty Default Notice, which warned about the penalty regime had been issued to the Club on 28 May 2010.
The Club also faced other financial pressures in 2010-11. Severe adverse weather meant that between 6 November and 29 December 2010 there were no home games and it is from them with the associated corporate activity that income is derived. The economic recession had an impact in that there was less financial support from both corporate and individual supporters. Royal Bank of Scotland changed the terms under which they remitted payment for the sale of season tickets so instead of receiving the funds in April or May 2010, they were received in tranches of approximately £99,000 in September 2010 and £55,000 in the following May. Lastly, the change in Government in May 2010 led to a fall in income from the public purse.
The arguments regarding a “reasonable excuse” for late payment were as follows:-
- Falkirk believed that they had good corporate governance and outsourcing payroll to a firm with a good reputation meant they had implemented their responsibilities.
- They had relied on the assurances from Mr Craig that everything was “OK” with HMRC and he had misled them: the first they had known of the problems was when HMRC took action.
- The impact of the relegation together with the change in the treatment of season ticket receipts, the reduction in income from the public purse and the inability to play home games for weeks had placed exceptional and unforeseeable pressure on cash flow.
- They believed that they had tried to be fair to HMRC in the past and on realising the problems had settled their debts so the penalty was perhaps unfair and disproportionate.
The relevant legislation is contained in Schedule 56 Finance Act 2009, as amended by Schedule 11 Finance (No 3) Act 2010.
Paragraph 9 of Schedule 56 states as follows:
(1) If HMRC think it right because of special circumstances, they may reduce a penalty under any paragraph of this Schedule.
(2) In sub-paragraph (1) “special circumstances” does not include—
(a) ability to pay, or
(b) the fact that a potential loss of revenue from one taxpayer is balanced by a potential over-payment by another.
Paragraph 16 of Schedule 56 states as follows:
(1) Liability to a penalty under any paragraph of this Schedule does not arise in relation to a failure to make a payment if P satisfies or (on appeal) the First-tier Tribunal or Upper Tribunal that there is a reasonable excuse for the failure.
(2) For the purposes of sub-paragraph (1)—
(a) an insufficiency of funds is not a reasonable excuse unless attributable to events outside P’s control,
(b) where P relies on any other person to do anything, that is not a reasonable excuse unless P took reasonable care to avoid the failure, and
(c) where P had a reasonable excuse for the failure but the excuse has ceased, P is to be treated as having continued to have the excuse if the failure is remedied without unreasonable delay after the excuse ceased.
The Tribunal rejected Falkirk’s arguments.
As regards the alleged failings of the company engaged to deal with payroll, the Tribunal said:-
If there were failings … then the Club’s remedy lies with her. The fact that the Club relied on her does not amount to a reasonable excuse.
The Tribunal went on to say:-
Two of the explanations given in the Grounds of Appeal in the Notice of Appeal appear to the Tribunal to be likely to be wholly accurate in the circumstances, namely “… the executive management did not fully understand the sequence of payments to HMRC and, … relied on memory for payments made” and “… overzealous cash management and a lack of appreciation of paying particular debts on time – including HMRC” led to the problems. Neither amount to reasonable excuse.
It then considered the actions of the former Managing Director, Mr Craig.
Firstly, since he was Managing Director, he was in fact “the Club” and his actions in that role were as the Club. Accordingly, the fact that he did not ensure timeous payment, knowing as he did the problems in the previous year and the availability of TTP would make it very difficult to argue that he was unaware of the potential problems caused by late payment of PAYE. The Tribunal finds no reasonable excuse in his actions.
Even if it were to be accepted that the Club should be considered to be the Board of the Club as a whole and that they relied on and were misled by Mr Craig, there is still a problem when looking at reasonable excuse in that context. In terms of Paragraph 16(2)(b) there can only be reasonable excuse, where there has been reliance on another person if the taxpayer “took reasonable care to avoid the failure”. The Tribunal finds that such reasonable care was not taken in this case.
The Tribunal accepted that:-
The Board very carefully monitored every major creditor on a monthly basis and in detail. They ensured that they had arrangements in place with every major creditor. However, the single biggest creditor was HMRC. There were no monitoring arrangements in place. Clearly, all other creditors were monitored very carefully but HMRC were not. Certainly in the early months of 2010-11 they did monitor the position in regard to the historic debt and that was appropriate.
Knowing that that debt had accrued, that their salary costs remained largely fixed and that they were moving into a period with significantly lower income available to cover those costs, a prudent Board should have been very concerned to monitor the cash flow and to ensure that there was no repetition of the 2009-10 debt.
It should have been perceived as a major risk factor and yet is totally omitted from the financial reports tabled. In May, June and August 2010 there were no payments. That alone should have alerted the Board (at their monthly meetings) to the fact that payments could not have been being made timeously. A prudent non-executive director, aware of historic problems with HMRC, should have questioned the quality of information received from the executive. The crucial problem in this instance is that debts due to HMRC were the only debts that the Club did not monitor and they should have done so. There was a failure in corporate governance. Accordingly, the Tribunal finds that there was no reasonable excuse on that basis.
Turning to the financial challenges facing the company, the Tribunal found as follows:-
The economic problems caused by relegation were wholly predictable and indeed the Club took appropriate action to manage that. No doubt the change in Government did impact on income streams but it was a planned General Election and most other businesses who depended on the public purse in any significant way had contingency plans in place. Royal Bank of Scotland had the power to change how they dealt with season ticket receipts and they did. That would have affected other football clubs. In any event, it was a timing difference and was a factor known to the Club at or about the beginning of the tax year.
Lastly, as far as the bad weather is concerned, although income will have been affected that was in November, December and possibly January and there were no late payments in that period so it cannot amount to reasonable excuse. In summary, although the Tribunal accepts that the Club was under financial pressure for a number of reasons, none of the factors cited were outwith the normal range of business pressures to be managed on an ongoing basis.
The appeal by Falkirk was dismissed.
As we can see, the argument puts forward by Falkirk were not unreasonable. However, this did not reach the threshold for being a “reasonable excuse” under tax legislation.
The omission of HMRC from the creditors being reported to the board ought to have been of concern, to the non-executive directors, even if the executives were aware of it. Accordingly, whether the execs omitted reference accidentally or deliberately, the responsibility of the non-execs was to note the true position, and act accordingly. The failure to pay HMRC should have been picked up by them and the failure to do so was a failure of governance.
The troubled financial climate too was not an excuse. As the Tribunal pointed out, other companies, and indeed Falkirk, did make provision for relegation, cuts in finance and bank changes.
Whilst this decision is irrelevant to the issue of EBTs waiting to be decided for Rangers, it does have a bearing on questions of penalties.
In Falkirk’s case, despite a number of steps being taken, and the bills being paid, they were still assessed for penalties.
In relation to Rangers, such arguments would not be available for the EBT cases, nor could they be used in respect of thew sums assessed as penalties where Craig Whyte decided to stop paying tax.
It also raises questions about the non-executive directors at Ibrox, and how much attention they paid to their roles, especially where they were experienced men of business. As the Falkirk decision makes clear, the non-execs have duties wider simply than to the company, and a responsibility to be active to ensure good corporate governance is in place.
Messrs McClelland and Greig resigned from Rangers under Craig Whyte as a consequence of being kept in the dark. It may be an issue addressed by the liquidators as to whether or not they did so early enough, or whether they ought to have been pro-active sooner, and done more than simply resigning.
We still await the Rangers decision. It is unlikely to be capable of thorough analysis in as short a post as this one!
Posted by Paul McConville
Random Thoughts Re Scots Law by Paul McConville 