Has the Court of Session Today Made a Decision Which Will Win HMRC the Big Tax Case?

I know that I am not known for the brevity of my blog posts, especially where I have substantial material to work from.

However I am going to change the habits of a blogging lifetime by writing a short post based on a long piece of source material. I will write at greater length but thought this worthy of comment now.

Remember the “Big Tax Case”? That was known, more formally, as Murray Group Holdings & Ors v Revenue & Customs [2012] UKFTT 692 (TC) (29 October 2012) and the decision can be read in full here.

The Murray Group (and predominantly “Rangers”) “won” the case to the extent that, by a two to one majority, the First Tier Tax Tribunal decided that, except in the cases where the appellant conceded otherwise, the payments which had been made via the Employee Benefit Trust structure by the employer and taken by the employee from the trusts and sub-trusts in the form of loans were not payments subject to Income Tax.

The appeal by HMRC is grinding its way towards a full hearing at the Upper Tier Tribunal and will get there eventually.

Lord Nimmo Smith and Rangers – The Judge Sets the Ground Rules

Highlights of the Opinion by Lord Nimmo Smith’s Commission

The “EBT” charges cover a period from 23^rd November 2000 to 3^rd May 2011.

This includes a charge of fielding ineligible players.

There is a further charge against Rangers (In administration) for failing to co-operate after March 15 this year, which is capable at the very least of causing Duff and Phelps embarrassment.

There is a clear distinction between the Independent Commission set up by the SPL and the SPL itself.

No fair-minded and informed observer would consider the possibility that the Commission or a member thereof was biased.

Rangers dropped the bias argument before the hearing on 11^th September.

Mr Green has said the SPL refused to reply to his lawyers.

The Commission says that the SPL’s lawyer did so by letter and in numerous emails.

Which of the two statements above is correct?

Oldco and NewCo were going to turn up, represented by the same lawyer, to argue that the SPL had no jurisdiction. At the last minute they declined to attend.

The SPL undoubtedly has jurisdiction over OLDCO.

The SPL undoubtedly has jurisdiction over THE CLUB.

The club is a separate but non-legal entity which continues notwithstanding transfer from one owner to another. Rangers Football Club therefore continue as before even though ownership has been transferred.

The SPL has no jurisdiction over NEWCO, but as it has power to impose sanctions on the club, owned by newco, newco has a direct interest in proceedings.

Therefore newco could face all of the punishments for the offences if proved, on the basis that the club it bought was guilty of them.

The administrators’ argument that this was a legal process and as such ought to be stopped without their consent failed. The case can go forward to  a full hearing.

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The most clear cut and most informative analysis of the saga of Rangers Football Club (apart of course from that on this site 🙂 ) has come from the courts or from legally qualified people presiding over regulatory matters.

The opinion of Lord Hodge in the case of Martin Bain v Rangers spelled out in detail the financial perils for Rangers and included the assessment by his Lordship that Rangers faced “a real and substantial risk of insolvency if the tax appeal were to be decided against Rangers in the sums which have been discussed”.

We had the decision of Sheriff Ross in One Stop v Tixway, which blew any remaining credibility Mr Whyte had to smithereens. In that case the Sheriff said of the former Rangers Chairman “I reject the evidence of Mr Whyte as wholly unreliable. It is not possible to ascertain whether he is not telling the truth or is simply unable to recollect the true position, and has convinced himself that this arrangement is something that he would not have entered into. Either way, his evidence is contradicted by virtually every other piece of evidence.”

Gary Allan QC chaired the SFA Judicial Panel which found that Rangers and Mr Whyte were guilty of various offences against football’s rules. Their judgement laid bare a concerted campaign by Mr Whyte to avoid paying millions of pounds of taxes, which money was used to keep Rangers Football Club running as far as February (and as the administrators started with around £3 million in the bank which should have been paid to HMRC, that non-payment probably enabled Rangers to make it to the end of the season).

Lord Glennie then overturned the transfer embargo imposed by Mr Allan’s Panel and confirmed by the Appellate Tribunal under Lord Carloway.

We also had Lord Hodge’s opinion on the application by the administrators to regularise their appointment when it turned out they had failed to notify all relevant parties.

We can now add to the ever growing pile of judicial consideration the Opinion published yesterday by the SPL. This is written by the SPL Independent Commission, consisting of Lord Nimmo Smith, Nicholas Stewart QC and Charles Flint QC.

It deals with their hearing last week to determine further procedure in the so-called Rangers EBT investigation. This is the procedure condemned by Mr Green as unfair and seeking to arrive at a pre-determined conclusion.

So, now that these three legal luminaries have considered preliminary matters and issued their opinion, where does it take us?

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After referring to the appointment of the Commission, the opinion narrates some of the relevant history.

At paragraph 4 it states-

The SPL was incorporated in 1998.   Its share capital consists of sixteen shares of £1 each, of which twelve have been issued.   Oldco (Rangers Football Club PLC) was one of the founding members of the SPL, and remained a member until 3 August 2012 when the members of the SPL approved the registration of a transfer of its share in the SPL to The Dundee Football Club Limited.  Each of the twelve members owns and operates an association football club which plays in the Scottish Premier League (“the League”).  The club owned and operated by Oldco played in the League from 1998 until 2012 under the name of Rangers Football Club (“Rangers FC”).

This confirms what seemed rather odd, namely that oldco, even though no longer owner and operator of a football team, remained a member of the SPL for almost two months after the sale of its entire assets.

Para 6 says:-

On 14 June 2012 a newly incorporated company, Sevco Scotland Limited, purchased substantially all the business and assets of Oldco, including Rangers FC, by entering into an asset sale and purchase agreement with the joint administrators.   The name of Sevco Scotland Limited was subsequently changed to The Rangers Football Club Limited.   We shall refer to this company as Newco.

This comes back again to the point I discussed earlier this week  namely that the purchaser seemed to change from Sevco 5088 Ltd to Sevco Scotland Ltd, although this statement by the Commission does not tally with the Rangers spokesman mentioned in the piece I quoted.

Para 7 states:-

Newco was not admitted to membership of the SPL.   Instead it became the operator of Rangers FC within the Third Division of the Scottish Football League (“the SFL”).   It also became a member of the Scottish Football Association (“the SFA”), the governing body of the sport in Scotland.  These events were reflected in an agreement among the SFA, the SPL, the SFL, Oldco and Newco which was concluded on 27 July 2012 and in this Commission’s proceedings is referred to as “the 5-Way Agreement”.

Let’s look at that again. Newco became a member of the SFL and became a member of the SFA (not that it had the existing membership of oldco transferred to it).

Para 8 summarises the definition of the notorious EBTs to be considered by the Commission. It states:-

“Payments made by or for [Oldco] into an employee benefit trust or trusts for the benefit of Players, including the Specified Players, employed by [Oldco] as Professional Players, Registered and/or to be Registered as Professional Players with the Scottish Premier League  and Playing and/or to Play for Rangers FC in the Scottish Premier League and payments made by or for [Oldco] into a sub-trust or sub-trusts of such trust or trusts of which such Players were beneficiaries, payments by such trust or trusts and/or sub-trust or sub-trusts to such Players and/or for the benefit of such Players and any and all arrangements, agreements and/or undertakings and the like or similar relating to or concerning any of such Players and payments.”

 Para 9 indicates that the periods covered in the “complaint” run from 23 November 2000 to 21 May 2002, 22 May 2002 to 22 May 2005 and 23 May 2005 to 3 May 2011 in relation to EBT payments and after 15 March 2012 in relation to failure by Rangers to co-operate with the SPL and to comply with the SPL Rules. Bearing in mind that this last charge is effectively levelled against Duff & Phelps, who were running the company as administrators, it makes the declaration by them that they would have nothing more to do with these proceedings remarkable. A finding that administrators had failed to comply with the regulatory body’s investigations in an industry where they were administrators would at the very least be embarrassing and at worst could have serious financial and disciplinary consequences for the firm and the partners involved.

The “charges” allege that Oldco and Rangers FC breached the relevant Rules of the SPL, and also those of the SFA, by failing to record EBT payments and arrangements in the contracts of service of the Specified Players and/or other Players and by failing to notify them to the SPL and the SFA.   There is one Issue directed only against Rangers FC, alleging that the club was in breach of the Rules by playing ineligible players.  The fourth chapter alleges that during the period from 15 March 2012 Oldco and Rangers FC failed to co-operate and to respond to requests for documents.

The Notice of Commission was served on Oldco, Newco and Rangers FC by letters dated 2 August 2012.

The Commission then goes on to comment on certain preliminary matters.

Independence

They state in para 10:-

It is fundamental to the constitution of a body with investigatory and disciplinary powers, such as the present Commission, that it must act independently of the person or body appointing it.   We must of course operate within the terms of our remit, and apply any rules which are applicable, but in reaching our final determination of the Issues, and in making any incidental decisions, we shall exercise our own judgement, on the basis of the evidence which is adduced, in accordance with the principles of natural justice, and unfettered by the influence of the Board or of anyone else.   None of us would have accepted his appointment on any other basis.   We have the use of SPL premises and are assisted by SPL staff, but this is because we have given instructions to that effect; the members of staff, in particular, act under our instructions.

The Minute of the Board Meeting appointing the Commission is referred to:-

SPL Independent Commission and Rangers FC – Some Questions Answered

Last night I posted details of the SPL Independent Commission process which will be used to deal with the Rangers FC “dual contract” investigation.

In light of a few comments, and me thinking about the issue when awake, as opposed to writing it when asleep, I thought I would add a few more thoughts.

Topics considered:-

Naming the Commissioners;

If there is an Appeal, is the SFA Appellate Tribunal Restricted in what it can do?

 What Penalty Might Be Imposed?

Why the Defiance about losing titles has been a brilliant tactical stroke by the Rangers FC

Carloway and Graham Step Down from SFA/Rangers Tribunal – + Breaking – SFA Statement re Embargo

Michael Grant of the Herald reports today the two of the three members of the SFA Appellate Tribunal which confirmed the sanctions on Rangers before being overturned by the Court of Session have stepped down.

The article, which can be read in full here http://www.heraldscotland.com/sport/football/exclusive-two-withdraw-from-appellate-tribunal-to-rule-on-rangers.18197546 includes the following extracts:-

Lord Carloway and Craig Graham, the chairman of Spartans, will be replaced if or when the SFA’s Appellate Tribunal reconvenes to consider the transfer ban again.

Herald Sport understands that Lord Carloway was unhappy that his verdict was contradicted by another judge and wrote to the SFA to inform them he would no longer be available for any future cases. Graham cannot consider the case again because of the possibility that suspending or expelling the oldco Rangers’ SFA membership (which the newco club seeks to take over) could create a vacant league place for which his own club, Spartans, could seek to apply. Graham removed himself rather than face a conflict of interest although he will remain available to the SFA for future cases.

Only former Partick Thistle chairman Allan Cowan remains of the original panel.

Analysis of Yesterday’s SFA Statement re Rangers FC

And lo! The tablets of stone have been brought down from the top of Mount Florida by Stewart Regan, in whom the SFA Board has “full confidence” (a feeling not replicated in too many other locations apparently).

The statement below, issued by the SFA yesterday, details all, or most, of the loose ends regarding Rangers FC. (As the football authorities are now referring to the football team owned by Sevco Scotland Ltd as “Rangers FC”, I will adopt the same practice). Nine questions are posed, and I have added my comments in bold under each section. The SFA questions are bold and underlined.