Analysis: Rangers Big Tax Case

Wednesday 21 November 2012

Oldco Rangers have won their appeal "in principle" against a bill from HMRC over their use of EBTs from 2001-10. Here, Ernst & Young's football finance expert Neil Patey explains his interpretation of tax tribunal's 145-page verdict and its implications.

SO WHAT IS AN EBT?

An EBT is a discretionary trust for the benefit of employees and has a set of trustees and a set of beneficiaries. The trustees are usually a professional trustee company or directors of the company appointed as trustees. The beneficiaries are the employees. EBTs were invented in the 1980s and were outlawed under legislation which came into effect in 2011.

WHAT DO HMRC SAY ABOUT EBTs? "General-purpose EBTs may be set up for clear business reasons, such as setting money aside to pay redundancy and other benefits to employees if their employment is terminated. However, EBTs have increasingly been used for avoidance purposes, with the aim of providing employees and directors with benefits in ways that aim to defer, minimise or avoid income tax liability..... and National Insurance Contributions." WHAT DOES THE VERDICT MEAN IN LAYMAN'S TERMS? In the vast majority of cases, the tribunal has found in favour of Rangers FC in that the payments to the individual players were loans and they were at the discretion of the trustees of the EBT. Basically, they were determined to be loans, not remuneration. On that basis, there is no further tax payable in terms of PAYE or NI (National Insurance), as HMRC was claiming. It is indicated in the ruling that in some cases, a minority of cases, the tribunal found in favour of HMRC so in those cases it was determined that is was remuneration, not loans, and PAYE and NI should be paid. But that is in the minority - in that vast majority, the verdicts went in favour of Rangers. WHO IS LIABLE FOR ANY MONEY OWED TO HMRC? In the majority of the cases, it would be Rangers oldco. If HMRC was unable to reclaim those monies from oldco, could it pursue individual players? Maybe. But it would depend upon the individual circumstances of each player, what they've done on their tax returns. There is not a clear, uncomplicated route in terms of recovering money from the players. HMRC's primary is to go after oldco for those monies. WILL HMRC GET ANY MONEY FROM OLDCO RANGERS? There is only a certain pot of money available via the liquidation route. For those sums that were discussed, it just increases by a small percentage how much of the overall pot goes to HMRC. By liquidators Duff and Phelps' estimate, about four months ago, they thought there might only be about £1million available via liquidation. They would just rank along with other creditors to get a proportion of that £1million pot so it's not going to make a huge difference to the overall pay-out that HMRC get. They were already due £25million-plus of VAT and PAYE that Craig Whyte didn't pay. COULD ADMINISTRATION AND LIQUIDATION HAVE BEEN AVOIDED HAD THE VERDICT BEEN KNOWN BEFORE CRAIG WHYTE'S TAKEOVER IN MAY 2011? What actually put Rangers into administration was the fact that Craig Whyte didn't pay VAT and PAYE. It wasn't the big tax case, and I think that's a point worth stressing, it wasn't the big tax case that put Rangers into administration. I think the big tax case potentially had two influences. Firstly, when Sir David Murray was trying to sell the club, it could well have put off some potential buyers of the club because the big tax case was hanging over Rangers. Without it, maybe other buyers may have come along, buyers who might have been a better outcome for Rangers than Craig Whyte. Secondly, after Craig Whyte had actually bought it, was he influenced by the fact that the big tax case was there? Did that influence the fact that he didn't pay VAT and PAYE and didn't put more money into club because maybe he thought he was going to lose the big tax case anyway? Only Craig Whyte knows the answer to that. There were probably a couple of junctures where the big tax case may have influenced the final outcome of events. WILL HMRC APPEAL? It's difficult to say. It was obviously a very complicated verdict, it was only a majority, it was 2-1, it wasn't unanimous. HMRC are clearly disappointed by the outcome. I think they will take their time and consider the likelihood of winning an appeal and the benefits of pursuing it further to try to get a favourable outcome.

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Analysis: Rangers Big Tax Case

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