The independent commission set up by the Scottish Premier League to investigate the allegation that Rangers' use of Employee Benefit Trusts represented a breach of registration rules will now meet early in the New Year.
The panel, chaired by Lord Nimmo-Smith, was due to sit earlier this month, but was delayed after Rod McKenzie, the Harper McLeod lawyer who gathered evidence for the SPL's initial inquiry, was injured in a car crash.
The commission can take into account the ruling by the First Tier Tax Tribunal that the majority of Rangers' EBTs constituted discretionary loans, and so were not subject to PAYE and NI payments, but the three-man panel will be considering the evidence from a different point of view. The 145-page judgment by the tribunal, which found by a 2-1 majority to uphold Rangers' appeal against tax demands in most of the EBT cases considered, contained several references to "side letters" detailing the loan payments to players. The commission must decide whether or not these side letters should have been declared to the Scottish Football Association along with the players' individual contracts.
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Rangers supporters have called for the commission to be cancelled following the verdict, however the evidence must still be considered, since the tax liability and the registration issue are not directly linked. However, Rangers' victory in what became widely known as the Big Tax Case should strengthen the Ibrox club's defence. With the payments ruled as being discretionary loans from a trust to the player, there was no obligation to declare the payments to the governing bodies. The club also declared the yearly payments made into the trusts in their annual accounts, which were lodged with the SFA.
"They started an investigation so they have to conclude it," said Neil Patey, of the accountants Ernst and Young, about the commission. "Even if they conclude that there is no case to answer, they need to finish and say why they came to that decision. There are some instances of payments which Rangers lost the appeal on, so you could point to at least one, but we don't know how many. They are all payments that were put through the EBTs – and so it is fair to assume that they weren't disclosed to the SPL – and they lost some of those, but it's a minority of cases.
"So, potentially, payments have been made that were not included in documentation to the SFA and SPL, which the SPL will want to look at, but in the vast majority of cases, payments were deemed to be loans, not emoluments. The SFA definition talks about all payments related to playing activities must be recorded in the contract. The SPL is not bound by the ruling, but the tribunal said they are not payments in the definition of tax law, they are loans. It is not clear within the SFA regulations how you define a payment. I would think that Rangers would take some heart from that fact that the tribunal has determined these are not payments because they are loans, then they could argue they are not payments under the SFA definition."
It is the commission, and not the SPL, that will make a judgment and decide on an appropriate sanction, if any is applicable. Among the potential punishments is title stripping, but that would seem unlikely if only the EBT payments considered taxable were deemed to have breached the registration rules. The verdict contains evidence from a number of parties, as well as submissions by legal representatives of both sides, including the assertion that "there is no formal SFA ruling in respect of remuneration trust benefits."
A sports lawyer with experience of player contracts and governing body regulations points out the commission can legitimately ask "what was the purpose of the loan [from the trust to the players]? Without seeing the contracts and side letters it's difficult to make a call. Under the SFA rules, it's all incomes or monies derived for playing activities. So what was the purpose of the loan? It's the use of words. If it's in relation to football activities, then the SFA under their own rules are entitled to know about it."
Lord Nimmo-Smith is likely to consult the tribunal's verdict, which is public record document, but there are elements of the evidence to the commission that was of no relevance to the tax case, and vice-versa. However, the tribunal deliberated in great depth the definition of the payments made to Rangers players before deciding they were loans.
"In the [tribunal] report, there were references to one or two instances where, indeed, the principle of dual contracts might have been applied and might indeed have existed," Alastair Johnston, the former Rangers chairman, said. "But it was very minor and related, as I understand it, to bonus payments or whatever. The SPL can conduct an investigation and, if their investigation is consistent with the option of the tax tribunal, then there could technically be a breach of their rules and regulations based on their interpretation.
"Having said that, the barrier to any sort of penalty, or any culpability that would result in anything more than a slap on the wrist is significantly higher. The barrier for doing anything else that would involve something more fundamental, such as stripping titles, absolutely does not exist anymore."