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A taxin question

The big tax case was, for a time, the very heart of the Rangers crisis.

Sir David Murray initiated the EBT scheme at Rangers. Picture: SNS
Sir David Murray initiated the EBT scheme at Rangers. Picture: SNS

The club could not conceivably move on while the First Tier Tribunal determined whether or not Her Majesty's Revenue and Customs were justified in charging £24m in unpaid tax, with additional penalties and interest, from Rangers' use of Employee Benefit Trusts. The verdict is now thought to have been delivered to the two parties, and should be made public in the coming days, but what will it mean?

In some ways, nothing, and in other ways, everything. A judgment on a period of Rangers' history certainly will be made if the club is found to have misadministered the EBT scheme and left itself liable to millions of pounds of unpaid tax. It was Murray International Holdings, Sir David Murray's company, that initiated the EBT scheme and made the appeal to the FTT against HMRC's bill. So the verdict will be a reflection on the way Murray ran Rangers.

At hearings in October 2010, April, May and November 2011, and January 2012, the tribunal considered evidence about every individual EBT administered by the club, with some thought to include side letters detailing payments which HMRC considered evidence of the scheme being used for remuneration. The payments, made in the form of loans from a trust, should be discretionary to keep the tax avoidance scheme valid. The likelihood is that the tribunal will find in HMRC's favour for some of the cases, and in Rangers' favour for others.

The size of the bill, and any additional interest and penalties, will be significant if only in terms of revealing the scale of any misuse of the scheme. The liability falls to Rangers Football Club plc, the company that went into administration and which will soon become the subject of liquidation proceedings once the accountancy firm BDO formally takes over. The Rangers Football Club, owned by Charles Green's consortium and which bought the business and assets of the club during the summer and now owns the team, will not be liable for any of the tax owed.

Green can, in effect, ignore the verdict. It will have little effect, if any, on the share issue the club has just launched, since the tax case was wholly the concern of Murray's reign and the EBT scheme, which ran from season 2000/01 to 2009/10. Craig Whyte, who bought the club for £1 in May 2011 – while paying off the £18m debt to Lloyds with money borrowed against future ticket sales from Ticketus – ran up an additional £9m of unpaid taxes in his own short reign.

Yet others will be more concerned by the outcome. In theory, if the bill is not for the full amount but a figure that might have been payable over time, Rangers could have traded their way out of their financial difficulties. Due to Champions League revenues, and cutting costs, the club reduced the debt with Lloyds from more than £30m to £18m. Ultimately, paring down the wage bill would have undermined the team's ability to win the league, and without the Champions League revenue no profit would have been generated to pay off significant amounts of debt, but Rangers could have cashed in on their playing assets.

The likes of Allan McGregor, Steven Naismith, Steven Whittaker, Steven Davis and Kyle Lafferty could have been sold to cover a manageable tax bill, instead of all leaving for free during the administration process. The big tax case played a defining role in Rangers' fate, though, since the threat of the full £24m bill, plus penalties and interest taking it up to £54m, then £75m according to administrators Duff & Phelps in their last report to creditors, made Rangers effectively unsellable.

Without it, buyers might have emerged before Whyte appeared with an offer to take the club off Murray's hands. Whyte admits now that he considered administration inevitable, despite comments to the contrary at the time, and was merely waiting for the FTT verdict. When the club ran out of money before that happened, he had to initiate the insolvency proceedings himself.

Even if it is likely that the tax bill will still be large enough to have prompted administration, the FTT verdict will not be merely a historical footnote. It will influence the reputation of those who ran the club then, and in some ways will deliver the final judgment on Murray's approach to owning Rangers, which was at times recklessly and heedlessly ambitious. Yet there might be more significant consequences.

When HMRC voted against the Company Voluntary Arrangement proposal made by Green's consortium to take oldco Rangers out of administration, they reasoned that the liquidation process would deliver the greater return. "[It] provides the best opportunity to protect taxpayers, by allowing the potential investigation and pursuit of possible claims against those responsible for the company's financial affairs in recent years," HMRC said in a statement.

Once BDO move in as liquidators, they have the power to investigate the conduct of previous directors, and criminal prosecutions can be sought, although no criminal allegations have been made. Losses can also be pursued in the civil courts if office holders have failed in their legal duties, and directors can also be disqualified. HMRC may also seek tax repayments from players and directors who benefited from the EBT scheme.

The FTT verdict should, in theory, have no effect on the inquiry being conducted by the SPL's independent commission, headed by Lord Nimmo Smith, since it is investigating alleged breaches of registration rules in the way that Rangers' administered the EBT scheme. If some players received side letters detailing payments, the commission must decide if they constitute contracts and so should have been declared in the players' registrations. Yet the side letters issue are key to HMRC's case, and the detail of the verdict may provide some indication of the evidence being considered by Lord Nimmo Smith and his fellow commission members.

However, if the big tax case was once central to Rangers' fate, it is now of greatest concern to the reputations and peace of mind of individuals, as well as being a judgment on a moment of time in the club's history.

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