Companies that paid staff via “contrived” employee benefit trusts have been urged to come forward, after HM Revenue & Customs scored a landmark victory in a tax avoidance case against the former incarnation of Rangers football club.
Experts warned there were likely to be “dramatic” consequences for businesses that used the elaborate schemes, after a unanimous verdict handed down by five supreme court judges.
The case concerned the use by the Glasgow-based football club of employee benefit trusts (EBTs) to funnel £50m of payments to employees from 2001.
Payments made via EBTs were agreed in “side letters”, which were separate agreements to employment contracts and were hidden from the taxman and the football authorities.
Lord Hodge and four fellow judges agreed with HMRC’s contention that any payments made through EBTs should be considered taxable income rather than loans.
The verdict given by the highest court in Britain followed an appeal by BDO accountants, which acted as liquidator to Rangers when the club went bust over an unrelated tax debt in 2012.
Legislation was brought forward in 2010 to crack down on EBTs, with companies offered the chance to reach a settlement over unpaid taxes, but HMRC carried on pursuing firms that did not do so. Companies that still have not come forward have now been urged to do so after the binding ruling from the supreme court on the use of EBTs.
“This decision has wide-ranging implications for other avoidance cases and we encourage anyone who’s tried to avoid tax on their earnings to now agree with us the tax owed,” said David Richardson, director general of HMRC’s customer compliance group.
“HMRC will always challenge contrived arrangements that try to deliver tax advantages never intended by parliament.”
Andy Wood, technical director of Enterprise Tax Consultants, said HMRC’s victory was likely to have dramatic implications for firms that used EBTs and also for football clubs’ use of “image rights” to pay players.
“It gives HMRC the authority to pursue them for income tax without the need to embark on a further series of legal actions,” he said.
“The process of issuing follower notices to recoup payment of what is expected to be tens of millions of pounds in income tax could begin almost immediately. In addition I have no doubt that HMRC will feel emboldened by the judgment as it expands its ongoing enquiries into football’s use of image rights payments.”
The ruling will not hit Rangers FC, already suffering one of the most embarrassing weeks in its history after being dumped out of the Europa League by Luxembourg’s fourth-best team Progrès Niederkorn.
This is because the case was brought against RFC2012, the rump entity left over from 2012, when Rangers went bust amid a separate tax dispute that saw its assets transferred to a new entity. But creditors of the former company are now likely to see any payouts they hoped to receive from its assets slashed.
Former Rangers chairman Sir David Murray said he was “hugely disappointed” with the verdict.
He said: “The decision will be greeted with dismay by the ordinary creditors of the club, many of which are small businesses, who will now receive a much lower distribution in the liquidation of the club [...] than would otherwise have been the case.”
