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4 November 2015, 12:12
Her Majesty's Revenue and Customs has won its second appeal over the so-called "big tax case'' involving payments to former Rangers employees.
Judges in the Inner House of the Court of Session allowed an appeal by the Advocate General for Scotland, acting on behalf of HMRC, over the use of the now-outlawed employee benefit trusts during the first decade of the century by companies run by Sir David Murray, including the now-liquidated football club Rangers.
The court ruling, summarised on the Judiciary of Scotland website, agreed with HMRC's contention the scheme amounted to "a mere redirection of earnings which did not remove the liability of employees to income tax''.
The decision is in relation to Murray Group companies including the liquidated company now called RFC 2012 plc and does not affect the current regime at Ibrox.
The Murray argument was that the payments were loans made with the discretion of the trustee of the sub-trust but that was dismissed by the Lord Justice Clerk, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young.
The judges decided any income derived from employees' services is classed as earnings and subject to income tax.
Lord Drummond Young said: "That accords with common sense. If the law were otherwise, an employee could readily avoid tax by redirecting income to members of his family to meet outgoings that he would normally pay: for example to a trust for his wife ... or to trustees to pay for his children's education or the outgoings on the family home.''
The judges ruled the "true nature'' of the payments to Rangers players were bonuses, which were typically negotiated by their agent and formalised in a "side-letter'' separate to their official contract.
Lord Drummond Young added: "It seems to us to be self-evident that the obligations in the side-letter were part of the employee's employment package and provided him with additional remuneration. They were negotiated as part of the total employment package.
"Furthermore, so far as the footballers are concerned, at least, it seems to us that if bonuses had not been paid they might well have taken their services elsewhere.
"We realise that the fifth respondent (RFC 2012) was in, potentially, a difficult financial position, competing for good players in an international market where other countries may not have the same rigorous approach to taxation as the United Kingdom.
"Nevertheless, the law is clear: the payments made in respect of footballers were in our view derived from their employment and thus the payments were emoluments or earnings.''
The judges confirmed the responsibility for the payment of tax fell on the employer in each case.
HMRC had previously submitted a demand for £46.2 million to Murray's companies, the majority of which related to oldco Rangers.
A First Tier Tribunal ruled by a two-to-one majority the demand be "reduced substantially'' and HMRC then largely lost its first Upper Tier appeal in July 2014. The victory was qualified as Lord Doherty referred an unknown number of termination payments and five "guaranteed bonus'' payments back to the original tribunal but Murray International Holdings claimed it left it with a "negligible tax liability''.
But the tax authority was granted permission to launch a second appeal and it is understood a change of legal tactics saw it succeed.
An HMRC spokesman said: "HMRC has a responsibility to make sure people pay what they owe and will always challenge tax arrangements where we do not think they work.
"As supported by the decision in this case, HMRC's view is that employment benefit trust avoidance schemes do not work.
"HMRC has collected over £1.3 billion in tax through 1,500 users of similar schemes.
"HMRC will continue to settle appeals by agreement where appropriate, but will if necessary continue to litigate cases where settlements cannot be agreed.''
Murray sold his majority stake in Rangers to Craig Whyte in May 2011 after struggling to find a buyer with the tax case hanging over Ibrox.
The club was consigned to liquidation 13 months later over separate tax debts, before being relaunched as a new company.