Advocate General for Scotland v Murray Group Holdings and others
A scheme involving payments to various trusts set up in respect of executives and footballers employed by the former Rangers Football Club amounted to “a mere redirection of emoluments or earnings” and was accordingly “subject to income tax”.
Judges in the Inner House of the Court of Session allowed an appeal by the Advocate General for Scotland, acting on behalf of Her Majesty’s Revenue and Customs (HMRC), against a decision of the Upper Tribunal in relation to tax assessments made on Murray Group Holdings and other members of the Murray Group of companies, including RFC 2012 PLC.
The Lord Justice Clerk, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, heard that in the tax years from 2001/02 to 2008/09 the companies entered into a series of transactions as part of a scheme designed to avoid the payment of income tax and National Insurance contributions (NICs) in respect of their employees, which resulted in assessments by Her Majesty’s Revenue and Customs to income tax under the Pay As You Earn (PAYE) system and corresponding NICs.
The companies challenged those assessments before the First-tier Tribunal, which upheld the appeal by a majority of two-to-one. An appeal by HMRC to the Upper Tribunal was refused in August 2014, but permission to appeal to the Court of Session was granted.
The scheme involved a cash payment into an Employees’ Remuneration Trust (the Principal Trust), and the trustee of the Principal Trust then paid the same amount into a sub-trust for the benefit of the employee and his family. The trustee of the sub-trust then advanced funds on loan to the employee in question.
The First-tier Tribunal held that the trustee of the Principal Trust had a “genuine discretion” as to how to apply the funds advanced to it, thus the benefit enjoyed by the employee and his family once the funds were resettled into the sub-trust resulted from the exercise of a “discretionary power” by the trustee of the sub-trust.
Such a payment was not a payment of emoluments or earnings, and was therefore not subject to income tax, the First-tier Tribunal ruled.
However, HMRC contended that the cash payment made by the employing company to the trustee of the Principal Trust was in consideration of services by the employee, and thus had been “earned” by the employee.
Therefore, the scheme amounted to “a mere redirection of earnings which did not remove the liability of employees to income tax”, it was argued.
The court concluded that the argument by HMRC was correct, and accordingly allowed the appeal on that ground.
The judges observed that the “fundamental principle” that emerged from previous cases was clear: “if income is derived from an employee’s services qua (in their capacity as) employee, it is an emolument or earnings, and is thus assessable to income tax, even if the employee requests or agrees that it be redirected to a third party”.
Delivering the opinion of the court, 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 funds are ultimately derived as consideration for the employee’s services, and on that basis they are properly to be considered emoluments or earnings.”
In relation to employees other than footballers, the “true nature” of the individual transactions was that bonuses were paid into the trusts on the basis of the work performance of the employee in question, and the profitability of his employing company.
“On the foregoing basis, we are of opinion that the sums received by the trustee of the Principal Trust and in due course by the trustees of the sub-trusts amounted to a mere redirection of income and thus constituted emoluments or earnings of the employees in question,” Lord Drummond Young said.
In relation to footballers, when a contract of employment was concluded, an additional side-letter provided for a discretionary trust payment and the amount of any bonus was typically negotiated by the footballer’s agent as part of his overall responsibility for securing “proper remuneration” for the player’s services.
Lord Drummond Young continued: “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…Once it is accepted that the bonus payments represented consideration for a footballer’s services qua employee, it inevitably follows that those payments represented emoluments or earnings of the footballer in question.
“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.”
He added: “We accordingly conclude that the primary argument presented for HMRC is correct: the payments made by the respondents to the Trustee of the Principal Trust in respect of employees were emoluments or earnings and are accordingly subject to income tax. Furthermore, those payments were made at the time of payment to the trustee of the Principal Trust, with the result that the obligation to deduct tax under the PAYE system fell on the employer who made such a payment.”
The full opinion of the court can be accessed via the Scottish Courts and Tribunals Service website (see link below) from 12 noon on 4 November 2015: