UTT Thread

CoSThis is a page put together to compile the first hand accounts of the UTT crafted by TSFM members in attendance, ably led by John Clarke, easyJambo and Jean7Brodie.

Please do not post here unless you have attended. Comments on the reports should be on the main tread.

Trisidium

Trisidium

Trisidium is a Dunblane businessman with a keen interest in Scottish Football. He is a Celtic fan, although the demands of modern-day parenting have seen him less at games and more as a taxi service for his kids.

48 Comments
  1. John Clark


    Nothing of any great substance to report from today’s UTTT hearing.
    I was there for 9.30 , but the kick-off wasn’t till 10.00. That gave time for a little bit of socialising: I didn’t meet the Grant Russell chap from STV, but only a chap from the ‘Sun’, and a director from Murray Group, and Mr Thornhill (QC for the respondents,i.e the MG),who came to make himself known to me and another TSFM person.
    A big surprise to me was that it was not Lord Bishopp presiding, but Lord Docherty ( which, of course, kept the business within the Scottish house)
    Apparently, the respondents had appealed against the time allocation set by Judge Bishopp, and it was reduced from 20 to 10 days, and Judge Bishopp stood down for some reason.
    At kick-off, there were ,besides Judge Docherty and the clerical officer, there were 15 persons in the Tribunal room.
    On the left, Roderick Thomson QC for HMRC,supported by 6 other lawyers(none of whom actually sat beside him,but behind).
    On the right, Andrew Thornhill QC for the respondents, supported by 2 other lawyers (one of whom sat beside him, the other one behind). Behind them was the Finance Director of the Murray group, the chap from the ‘Sun’, and me and a lurker.
    On my left were two young women one of whom was there, she told me, as part of her training, as newly qualified and in her first job in a solicitor’s office as a qualified solicitor.
    The other took copious notes and was probably a lawyer as well. (Mind you, so did I take copious notes,and I’m no lawyer!) She did not turn up for the second half.
    The 17th person must have been Russell of STV, but he was sitting beside the lawyers behind Thomson,QC, so I had clocked him as a lawyer.

    Lord Docherty reminded counsel that the names of the HMRC officers who gave evidence at the FTTT should not be disclosed, nor should the names of 3 witnesses who had given evidence on the basis of anonymity. Mr Thomson said he would try to remember that if or when he had occasion to mention their testimony in the course of the hearing.

    Mr Thomson invited His lordship
    – to overturn the decision of the First Tier Tax Tribunal and uphold HMRC’s assessments. He added that he would later have something to say about ‘unreasonable comments’ made by the FTTT.
    or, if His Lordship was not minded to make any additional findings of fact, then to remit the case to a fresh Tribunal.
    He gave a very short summary of the background. To wit, that the FTTT had heard evidence for 17 days,
    and that the evidence bundles shows that much of the documentation was provided by the MG, and that there had been extensive reference to that documentation.
    Put very simply, the MG had argued a) that for earnings to be taxable, there had to be ABSOLUTE legal title to
    them, and that under the EBT Trust scheme there was no such absolute title. Payments made under them were something other than bonuses or emoluments and that the recipients of loans had had been no ‘unreserved disposal’ of the money that was on offer as loans.
    and b) that the Trust scheme had not been shown to be a sham.
    Mr Thomson said that HMRC’s view was that the evidence showed that there had been an underlying tacit agreement between the parties involved that loans would not ever be recalled, that interest due would be rolled up, until death, when the interest and repayment would be able to be offset against inheritance tax.
    He said that the idea that the idea that payments under the Trust arrangements were something ‘other’ than taxable earnings was merely an assertion by the MG that did not reflect reality.
    The rest of the day was spent by Mr Thomson ripping the FTTT’s whole approach to their hearing apart, and using quite harsh words their failure of duty to examine the evidence, make complete findings of fact, and apply the principles of the Ramsay case and a couple of other relevant cases properly, if at all.
    he referred to the minority report of DR Poon as showing how many findings of fact were there to be made, which the majority had missed, and how their understanding and application of the Ramsay and other relevant cases had been erroneous and actually missed the very point of those cases.
    He went on to say that the FTTT majority had failed to address the submissions made by HMRC, and that a pattern emerged of the FTTT simply accepting the MG’s submission, and of failing to make findings of fact to support arguments
    There was not merely understandable error in law, but deeply flawed submissions by the Majority, wholesale faiure to exercise their judicial duty.

    And so on all day till 4.00 pm, with frequent references to the legal authorities and the true interpretation of the case which is, that while there may be all the legal documentation to show that there was a proper, valid Trust, it was necessary to look at whether people in fact worked the Trust properly.
    The Trust may be perfectly legal and not a sham, but the Trustees could ( and in this case, did, act beyond their powers) by making loans to people who were not entitled to such under the trust, making loans without requiring evidence of security or requiring repayment or interest payments -and all involved knew this to be the case. And, of course, the Trustees who began to ask for security etc were dismissed and another more compliant lot were brought in.
    —–
    That all sounds as dry as dust, but I actually quite enjoyed the day, And I’ll be back tomorrow. I still have 18 pages of notes to decipher: I can write legibly, and I can write fast: but not both at the same time!

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  2. John Clark


    My apologies to Lord Doherty for spelling his name with a ‘c’. Must have had a wee auld neebour o’ ma mither’s in mind, whom wee ca’d ‘wee mrs doc fae upstairs’

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  3. John Clark


    Today at the UpperTier Tax Tribunal.( Read this only if you are particularly interested: there is nothing particularly exciting
    :
    Kick-off 9,30.. pretty well the same people as yesterday, except no Grant Russell , and the only other member of the public apart from myself was a different guy from yesterday.

    Mr Thomson Qc carried on from where he left off yesterday, patiently showing in how many respects the FTT had erred in law either by not making relevant findings of fact ( in relation to the reality of the, the tacit understanding, behind the ‘legality’ of the bits of paper relating to the trust.)
    This was one of his three main arguments: that in fact there was no barrier to the recipients getting hold of the money, the money was available to them without difficulty. He had told the FTT that it was incumbent on them to read the 17-day’s worth of evidence and make findings of fact. This, in his view, they had not done.They had failed to appreciate the ‘boundaries’ of sham and had therefore mis-understood the Ramsay judgment. They had failed to have regard to the co-existence of ‘legal’ and ‘commercial’ reality.They had failed to identify the purpose of the transaction, that it was a tax evasion ( he corrected himself here and used the word ‘avoidance’) scheme; that the Trust had no independent life at all: that no payments were made into the Trust other than those required by the Murray Group (MG). It was clear that the Trustees saw their role simply as that of chanelling money to employees.
    The Tribunal,he said, look at that, because the MG simply asserted that the Trust was ‘legal’.
    He cited the Ramsay case observation that the point to hold on to is that something can be ‘real’ for one purpose and not for another.
    What was artificial was the whole thing, as in the Aberdeen asset case.
    He moved on to discuss the First tier’s failure to apply themselves properly to the Sempra case, and failed to make the necessary distinctions.The MG had argued that Sempra should be followed and the Majority (of the First Tier) had used it extensively.
    But in mr Thomson’s view, the then Commissioners of Revenue recognised that if the Trustees (in that case) were a ‘cypher’, the payments in question in that case would amount to emoluments. in a context where it was agreed that the the arrangements of the Trust were not a sham.
    What had happened, he said, was that MG encouraged the First Tier to adopt ‘Sempra’ without pointing out that the Sempra judgment did not rely on there having been a ‘sham’.

    And, in the present case, The ‘Majority’ closed their minds to anything other than the ‘legality’ of entitlement under the ‘legal’ Trust.
    It is absolutely plain, said Mr T , that in Sempra the decision was not based on the ‘legality’, but on the basis of the reality of things , in practical terms. ‘Legal title’ is part of the picture but by no means the whole picture.
    In the present case, he went on, the ‘Majority’ did not look at the practicalities, at the evidence relating to those practicalities to arrive at any decision, or to whether the Sempra case could be distinguished. And there was a massive amount of evidence to show that the Trustees were ‘cyphers’ ( the flavour of the evidence can be got from the Minority decision).
    The employer had power to replace the Trustees etc etc,
    All these are points of distinction that the Majority should have looked to make.
    The error I (Mr T) identify in the MG approach carries on in their approach to Sempra.According to MG the only thing that matters is the ‘legal title’, and they ignore the central point of the Sempra decision,with the reference to Trustees as ‘cyphers’

    Here Mr T asked the judge if he wanted him to go through Sempra, pointing out the points of distinction.
    Lord Doherty said ” What is notable is that [ in that case] the Commissioners have made findings of fact”.

    Yes, and in the Aberdeen assets case, said Mr T..

    There were a number of points of distinction to be made.
    For example, in the Sempra case there was a ‘pool’ of money from which bonuses might be made.
    But in this case,specific arrangements were made with individuals; individuals such as Mr McLeish, Mr N. and SDM had complete control over how their Trust payments were to be invested ; there were no ‘staged’ loans; and interest was rolled over to the end of the loan, and was expected to be rolled over again on a repeat loan.

    There was no simple ‘pool ‘of money from which bonuses might have been paid.
    .
    Also in the Sempra case there was reference to how the Trustees related to the fund. In our case, there was no ‘fund’, but the employee was made ‘protector’ of the funds in his sub-trust, and was able to access the money at will.

    In Sempra, records were kept by the Trustees of contacts with the families.
    In our case, there was no contact between the recipients/employees and the Trustees.

    ————————
    And so it went on, with case reference after case reference,showing how the First Tier Majority had failed to make adequate findings of fact, and how in this or that respect they had misapplied the law, or misunderstood it, or had not bothered to read the huge amounts of evidence.And how they seemed to have been locked into MG’s view that because the paperwork of the Trust showed the Trust to be ‘legal’, then what actually happened and how the whole thing operated was considered to be irrelevant.
    Slow, painstaking step by step dismantling of what I think all of US can plainly see was a very inadequately based decision by the Majority.
    There were a good few mentions of Dr Poon.

    I could go on, but, ach, you’ll see it all in the final judgment. But perhaps this gives a flavour of the detail and the cross-referencing and interlinked nature of these legal arguments.
    Mr T will carry on in the same vein for another day or two, and then it will be Mr Thornhill’s chance to rebut, if he can, Mr T’s arguments.

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  4. John Clark


    Do not read this unless you are really keen, There is nothing terribly exciting about this mornings doings in the UTTT, I’m posting it just for anyone who might like a further flavour.
    I confess that without access to the transcript of evidence and the ‘skeletons’ given to the judge by the QCs, I find it very hard to make sense of some of what is said. But i enjoy it.
    In Tribunal this morning only (taking a half-day’s ‘leave’).
    13 people present in total ‘Sun’ reporter not present, and one lawyer on Mr Thomson’s side was absent, and I was the only member of the public present. (And I was reminded that, if names of people who were entitled to anonymity were accidentally mentioned, I would be hanged, drawn and quartered if I even uttered, let alone published, them! No, I’m kidding about the penalty. But I was reminded).

    Mr T began with reminding us that yesterday he had argued that the First Tier ‘majority’ had failed to make any finding of fact about what the Trust transaction actually was. It was NOT along the lines of the Employer saying ‘we want to benefit your families through a Trust. Rather there was evidence that it was along the lines of “we want to pay YOU”, and the whole Trust edifice was designed was designed to accomplish that end.

    In Mr T’s view, the ‘majority’ failed to make findings of fact to support their dismissal of the Scot.Prov case as irrelevant, seeming to dismiss it only on the grounds of the ‘documentary’ ‘legality’ of the trust.
    They made no finding of fact relating to the question whether in the actual, practical operation of the EBT scheme, evidence relating to which was available in quantity, there was ever any intention or real commercial risk that repayment would ever be required.

    Lord D. raised the point that repayment would be due on death- and no beneficiary had yet died,so..?

    Yes, said Mr T. But interest was rolled over and could be rolled over loan after loan to decrease the our inheritance Tax liability. So the trust arrangement did not just avoid tax and N.I. but Inheritance Tax as well.
    He agreed that as a matter of ‘legal’ reality there was ‘debt’. But several witnesses said that they would examine the options open to them in years to come about how they would deal with that.
    A number of foreign players wanted their Trusts undone, the arrangement was changed and the employees ended up with all the money free of debt.
    What matters, said Mr T is the underlying reality. The legal wording of the Trust is of relevance only in so far as it shows the purpose of the Trust.
    Coming back to the Scot.Prov. Case, there the ‘payment on death element’ was the same position as in the Aberdeen Asset case- there was on the face of it ‘debt’, but that did not prevent ‘unreserved disposal’.
    The starting point is that it was only ever about channelling money to employees.
    The MG say that the loans were enthusiastically taken up by employees. But I say, that that was because they were being granted without vetting of any kind, without security, rolled over interest and no realistic requirement to repay.
    In the Scot Prov. decision, since ‘Ramsay’ it has been accepted that ‘the language of statute would need wide interpretation..’ and ‘Ramsay’ would be destroyed if it was held to be right NOT to consider the composite transaction, but only to focus on each individual step in isolation.
    The inclusion of ‘commercially irrelevant’ elements in the legal formulation of a Trust to create doubt as to the relevance of an attack by HMRC is something that both parties in this case did not accept as valid.
    And there was a quote from Lord Birkenhead to support this, and a quote from another source about the ‘bogus nature’ of ‘commercially irrelevant contingency’ in the loan agreement.
    We (HMRC) were saying that , on the evidence, the Trust mechanism was operated in such a way that there was no risk of it not working as planned. In reality(never mind the terms of the Trust) there was no risk of refusing a loan, no risk of refusal to grant a loan, no risk of repayment being required.
    But in any event, even if the First Tier majority believed there was a risk, then all that that represented was a risk that the parties had included and that it was commercially irrelevant , and therefore it was in line with the Revenue Commissioners’ views in the Scot. Prov case.
    And if only a part of the transaction in the Scot Prov case was ‘artificial’ so much more was the whole transaction in the case we are dealing with.

    We argue that there was no ‘discretion’ and on that footing the Scot Prov decision does not come in to play-HMRC win that point
    But if there were ‘discretion’ we are back in Scot Prov territory in respect of ‘a risk known and accepted by the parties’—so HMRC still win.
    Looking at the Astor case, ‘purposive construction’ is in two stages ;
    no account should be taken of artificialities. The Commissioners found that the acceptance of risk by the parties could be ignored
    and the ‘unity’ of the transaction IS to be taken into account.
    The statute is to be interpreted ‘purposively’ unless Parliament had said it had not to be.
    If it were the case that there was some real commercial discretion, then the parties have proceeded on the basis that the risk should be disregarded.
    I say this because these propositions are all facets of the requirement to construe ‘purposively’, so if there were some ‘element’ of risk, it can be disregarded by the Court.

    I say it was INCUMBENT on the First Tier majority to address themselves to this argument. They could not do so without identifying what the transaction was, what the ‘risk’ step was, and whether the parties had accepted the risk.
    But they simply dismissed case-law out of hand.

    The next point Mr T raised was the ‘majority’s’ failure to address the fact that ‘Sempra’ was erroneous in law. The First Tier majority did not appear to know that the Sempra decision had been appealed by HMRC and the case settled under a different basis.
    There has been a lot of ground covered since Sempra, but I (Mr T) suggest that the First Tier did not pay attention to it, partly because they did not know that the Sempra they relied on had been appealed!
    The side-letters were next in Mr T’s sights.
    Rangers did not register these with the SFA/SPL as they did with the ‘contracts’. My learned friend agreed that the side-letters were ‘contractual’ but not part of the players’ “contracts”
    I say that the First Tier should have found out whether they ought to have been submitted as part of the contracts.
    The witnesses told us that they did not submit them because they were separate contracts.
    [Lord D said: I am not clear, but I had read it as that the contracts were part of the whole contract of employment?]
    (looked up some para 120 in some document)

    MrT then followed up with his next point-the fact that the side-letters were kept secret., and had been kept secret from HMRC for 5 years. And the fact that they were nor lodged with the football authorities is relevant to the REALITY of the Trust transaction.
    The First Tier should have tested the gloss applied by MG, because it was obviously relevant that the side-letters had been concealed.
    I (Mr T) had argued in detail that failure to disclose was in breach of the SFA/SPL rules
    The First Tier majority simply IGNORED those submissions. And your Lordship will perhaps know that the LNS enquiry had held Rangers to have been in breach of the rules.
    [Lord D: where do I find where they ignored..?]
    There was no discussion, my Lord, only a comment or finding tha Rangers did not consider it appropriate to register the side-letters.
    There was also, Mr T continued, the fact that the side-letters were kept from the Auditors. This was all part of the picture of secrecy. ( denied by witness Mr X ) [ I , me, don’t know whether this was one of the ‘keep anonymous’ witnesses, but I’m taking no chances!’]
    If the scheme operated in the way MG said, why was it that its true nature ws concealed? Why conceal the side-letters for 5 years? Why were they not lodged with the SFA/SPL?
    In my submission, it was not for reasons of commercial confidentiality. For the Football authorities know how to keep the confidential business of their members secret.
    [ Lord D asked : where do I find the SPL/SFA rules?]
    In folder 21 ,was the reply, and his Lordship eventually found it on the floor behind him .( Stacks of folders already heaped on his desk!)

    Mr T then said that he was not , of course, arguing these questions. He was simply pointing out that there lots of questions that should have been addressed by the First Tier and findings of fact made. They basically did not do this.
    Next point was that it was clear from their very decision that the majority of the First Tier simply did not have regard to all the evidence:
    they failed to consider the true nature of loans
    they erroneously in law equated ‘legal existence’ with ‘commercial existence’
    failed to have regard to the fact that employee beneficiaries were the Protectors of their Trusts
    made only findings of a non-controversial nature
    their ‘factual matrix’ contains only comments on issues but no findings of fact
    their narration of their view of the evidence is materially incomplete and addresses only what the MG said was relevant
    HMRC’s evidence is not even included in the narration let alone any analysis of it
    the narration is anodyne and brief
    Witness Mr X ( the same guy as above!) gave evidence for 3 and a half days- this was summarised in one and a half pages
    lots of areas of relevance do not appear in the narrative . For example , Mr Y’s evidence on the ‘grossing up’ question, or on the uncommerciality of paying money for living expenses, Mr B’s unusully prudent approach to the whole business, Mr C’s admission of not knowing in detail how the scheme operated, Mr L’s evidenc- none of this gets any mention, and none of it appears in ‘findings of fact’.
    Nor was Mr P’s evidence about ‘not expecting to have to pay anything back in my lifetime’,or Mr L’s evidence about the discussion on bonus payment mechanisms and decisions.
    The story of the players’ dispute in the matter of UEFA CL bonus schedule just before a CL game, and HMRC’s contention that a schedule of bonuses to be paid by Trust arrangements was hastily agreed, simply does not appear or is not considered.
    The First Tier, in Mr T’s submission simply did not make, as they ought to have done, findings of fact!
    [ A wee scurry through the Sheriff Court guidance and T Jacob’s ‘Tribunal Practice and Procedure’]
    And Lord D says, yes, full findings are to be made in every sphere of law at any level. Tribunals must not simply repeat what people say. They must state what they themselves make of what people say. And it is not good enough just to make findings of fact that support their decision .. ‘Judges are under a duty to find the facts..’]

    Further points gone into in detail related to the fact that Trident knew, even before they were appointed, they were expected to grant loans simply on the say-so of the Club.
    Equity were bumped when they raised difficulties.
    The Tribunal took into account wholly irrelevant material, waffling on about HMRC’s attitude to Inheritance Tax, for example, and in the narration of one witnesses statement, waffling on about the witnesses view about ‘sham’ rather than about the evidence he gave.

    There was then a lot about evidence that recipients did have a choice about whether to accept payment by loan or by Trust.

    The tribunal’s view that if a player did not accept a loan, he got nothing is unsupported by the evidence.

    And all of a sudden it was lunch time!
    I took a half-day.
    I’ll be in Tribunal only tomorrow morning: having a beer with my Glaswegian pals, who are coming through at lunch time.

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  5. John Clark


    paulmac2 says:
    Thursday, February 27, 2014 at 00:10
    ‘…I am a tad surprised though that you are the only member of the public who has attended.’
    ————–
    So far, there has been me, and on Monday one other member of the public, and on Tuesday morning a different other member of the public,with whom I shared a coffee and brief discussion.He was Edinburgh based, and a pleasant man whose daughter had been a law student and he had turned up because he was as interested as I in the whole legal shenanagins, and we exchanged pleasantries about the difficulties of following the legal stuff without having sight of all the bumph. I think that he was probably of the view that the First Tier had arrived at the correct decision.He didn’t say that, and I didn’t volunteer my opinion.And I may be wrong in my thinking.
    But you’re right. I would have thought that there would have been some old guys with the bus pass and time at their unreserved disposal (like me) who might have been interested enough to put in an appearance.
    In conversation with the young relatively newly qualified solicitor whom I mentioned in my previous report, we discussed the whole Ciceronian idea of the ‘the law’. Which is that the mere fact that you are in the dock does not mean you are guilty, even if the whole world wants you to be guilty! There is the little matter of proof to be hurdled. and the minute we allow ourselves to forget that, is the minute when every one of us is at risk.
    I think most of us know that, instinctively.

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  6. jean7brodie

    jean7brodie


    I attended the morning session of the UTT today ie up until 12:00 when other duties called.
    I would like to say from the start that I have nothing but complete admiration for John Clarke and his dedication to the task of attending and reporting, in a magnificent fashion, on this process.
    I can honestly say that I didn’t enjoy it very much.
    I was out of my depth and agree with JC that the lack of access to the scripts which were being used hindered my note taking and understanding of the bigger picture.

    I will attempt to give a short summary of what happened. Please forgive any mistakes I make in this as it is a first attempt.

    For most of the morning there were four members of the public in attendance: Mr and Mrs 7Brodie, one other TSFM follower and one young lady ( Law Student?) We were later joined by two young men.

    The focus of the morning was on Ian McMillan Tax Manager with Murray International Holdings Ltd.

    Mr Thomson, in his evidence, suggested that Mr McMillan :

    Was Central to the Trust and the operation of it.

    Was in place from day 1

    Had denied on many occasions it was a Tax Avoidance Scheme even although the all of the other witnesses at FTT? had agreed it was Tax Avoidance eg Andrew Dickson, Mr Horn, Mr Wilson and Mr Morgan.

    Had admitted that he had written an Internal Memo where he described it as a Tax Avoidance Scheme

    Lord Doherty made the point that it had been accepted at the FTT that it was a Tax Avoidance Scheme.

    At this point there was some discussion over Mr Thornhill not having access to unredacted documentation.

    Lord Doherty stated that he was puzzled that Mr Thornhill had not asked to see the full version of the documents!!

    Mr Thomson recalled that Mr Thornhill did see the full version. (I was getting excited at this point thinking we were going to see some action in the court, we didn’t!)

    More evidence was given suggesting that Mr McMillan was untruthful to HMRC re his misrepresentation of the nature of the Scheme/Trust and correspondence regarding it.

    Mr Baxendale- Walker was mentioned many times regarding his locus in drafting communications concerning the operation of the Trust.

    Mr Thornhill protested that Mr Thomson’s evidence was, basically, irrelevant to the UTT .

    Mr Thomson countered that his evidence and documentation went to the very heart of the case.

    We then had a short break and it was great!!

    Mr Thomson pursued yesterday’s point of proving that the Trust was operated in such a way that it operated only as a conduit for payments/loans to players, managers etc and that Mr McMillan knew that every sum of money lodged in the Trust would immediately be paid out to employees as loans.

    Some considerable time was spent outlining the process of the regularity of paying the loans via Equity to Deepwater to Employee and the interest paid to Deepwater for these loans.

    Mr Thomson then presented a number of situations where he stated that Mr McMillan ‘had not told the truth’ and had been ‘repeatedly untruthful’

    These were concerning the links between Equity, Deepwater (a subsidiary of Deepwater) and Employees.
    _______________________________
    I left at this point .
    I know you will all be bored rigid by now but Hey Ho that’s the UTT for you!!!

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  7. easyJambo


    I went along to the UTTT today and it was good to meet “Jean” and “Mr Jean”. Another couple of TSFM lurkers also dropped in, but only lasted an hour before they dropped off (sorry, left). As JC has mentioned previously, it is heavy going at times but interesting all the same.

    As Jean has already pointed out the bulk of the day was devoted to undermining the credibility of Ian McMillan, Murray Group’s tax adviser, who was their main witness at the FTT, the much maligned Mr Red.

    Roddy Thomson opened by questioning the “majority’s” view that McMillan was “less than forthcoming” as being sufficient. He also went on to say, that while “credibility” isn’t normally in question once you get to the UTTT, he asked that Lord Doherty specifically makes “findings” on McMillan’s credibility.

    Jean has outlined a few of the instances where his credibility as a witness at the FTT was questioned. There is no need to repeat them, suffice to say that differences between his oral testimony and the documented evidence were highlighted again and again

    (I seem to recall that Dr Poon made reference to this in saying that the majority had relied too much on the oral testimony and not enough on the contemporaneous evidence i.e. the documents of the time)

    By mid afternoon, Roddy T must have highlighted maybe 25 or so points related to McMillan, going over the transcripts from the FTT and the related documents, covering mainly his correspondence (or lack thereof) with HMRC re requests for information on how the scheme worked, providing requested documentation, side letters, what records he kept etc. McMillan claimed that, until 2007, much of the HMRC correspondence was actually drafted by Paul Baxendale-Walker and his people, although ultimately signed by McMillan

    The most common words used in connection with McMillan were untruths, dishonest, lies, misleading, evasive, falsehood, misrepresent and his commonest responses “I can’t comment on that”, “you’re putting words in my mouth” and my favourite “We could have been more open”

    He was also accused of removing side letters from the files of Arteta and McCann before passing them onto HMRC. His previous role as a Tax Inspector with HMRC was also noted.

    In the last hour they moved onto the “brown envelope” which was given to Mrs Orchard (worked for Trident, the latter trustee of the EBT scheme). The envelope contained Board minutes where payments into the scheme were authorised and lists of eligible personnel were listed.

    Mrs Orchard had initially stated that Trident had this information (should have been a pre requisite before handing out trust funds), but later had to admit that McMillan had only handed over the documents the day before she gave evidence. The credibility of both Mrs Orchard and McMillan were questioned for their respective parts in this event.

    The final part of the day was spent further undermining Mrs Orchard’s evidence as to the “lax” approach taken with regards to checks on individual loan requests. There were 487 payments made into 108 trusts, 483 loan requests (all of which were granted) with the remaining 4 belonging to “Mr. N” who wanted to leave the funds invested rather than loaned.

    The checks that Trident carried out on the trust holders were ridiculed, particularly with regard to “Worldcheck” which apparently does internet checks related to political or financial risk. The day ended with a laugh as Roddy T read out a piece of transcript form the FTT questioning of Mrs Orchard about “Worldcheck” ……. So Mrs Orchard if “Osama Bin Laden” was a Rangers player it might have flagged something up, but if you entered “Laden Bin Osama” it might not.

    =====================================

    The tribunal resumes at 9.30am tomorrow.

    I won’t be free to go back until the middle of next week, which might be interesting as Andrew Thornhill should be defending the FTT outcome.

    On a general point I found some periods pretty tedious as Roddy T rambled along ….. with his monotone voice …… which made it ever so easy to drift away…… as he repeated long bits from transcripted conversations at the FTT with various witnesses ……. and flipped from one binder of documents to another .…. so much so that one of his own legal team closed his eyes for ten minutes or so ….. then even Lord Doherty couldn’t conceal a yawn…….. get my drift?

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  8. John Clark


    Today in the Upper tier Tax tribunal hearing.
    I was there all day.No press guys.
    At kick- off only 9 people plus judge and clerical officer.Another member of the public (a Hibbie (frae Kilmarnock1) came in after lunch

    I will not give the long,blow by blow account, because essentially it was Mr T doing further detailed analysis of where in particular he believed the ‘Majority’ to have erred in law ( either by
    misdirecting themselves on what the law is, or applying decisions made in other cases that were simply irrelevant to this case, or by arriving at conclusions that no properly considerative Tribunal could reasonably have arrived at on the basis of the evidence that was there to be considered
    In particular, he had a right good run through the evidence given by Mrs Crimson and three of the top brass at RFC.
    Basically, he said that these had variously lied and then hadn’t got their stories together about how the scheme was actually run and the way that loans were simply rubber-stamped without any investigation, and that none of the documentation asked for by HMRC showed anything like an attempt to establish the applicants’ circumstances, or rate of interest to be paid, etc etc.(The example was cited of the player who bought a house that was priced at more than it was worth, the flash car that he sold cheap, at a time when sheriff officers were trying to get just £1000 tax payment from him -not a single question about the advisability of lending large sums to such an irresponsible wastrel was asked.And other examples of players leaving Rangers for other clubs where their salary etc would be considerably reduced being granted loans amounting to half their Rangers salary, no questions asked about their ability or otherwise to repay..
    In some instances loans were paid before documents had even been signed!

    Mr T also asserted that the evidence showed that the Tribunal was in breach of Trust by accepting that loans were made to un-entitled people- some to the two sons of a titled gentleman,and to other people who were not ‘competent’ beneficiaries under the Trust.

    And for Tribunal merely to observe that there was a ‘degree of orchestration’ meaning ‘not very much’ , and fell short of preventing ‘unreserved disposal’ was a wholly unreasonable conclusion to arrive at, on the facts.

    And so on.
    After lunch, there was more on the ‘credibility’ or otherwise of the senior chaps operating the scheme, and the ‘tacit understanding’ and ‘composite transaction’ MG’s control of the Trustees (they sacked Equity and found another company which at first wanted statements of assets and so on, but instead meekly acquiesced and just acted as a conduit for the transfer of money when asked by the club to do so.

    Overall, M T submitted that the Majority:
    failed to apply ‘purposive’ interpretation
    -failed to appreciate the Ramsay decision
    -erroneously applied the Mayes case decision
    -failed to address all the evidence
    -showed a reluctance to adjudicate all the way through the hearings
    -did not express a considered view on subsidiary points
    -said that there were some things that may need to be dealt with further by the Parties without deciding on what principles they should be decided, or making relevant findings of fact to which any principle should be applied
    -and showed a marked reluctance to address themselves to the detail of the case.
    In my submission, said Mr T, this was a fundamentally flawed decision which contains unreasonable comments and conclusions and errors in law.

    That being the case , m’lud, it will be necessary to make further findings of fact
    [Lord D: you think you would be disadvantaged if not?]
    yes, m’lud.
    I respectfully submit that your Lordship must either remit the case to a freshly constituted Tribunal or make those findings of fact yourself.
    Lord D: how could I do that? I have not seen the witnesses?
    But m’lord, in the case of Mrs crimson and the senior managers’ credibility, you have ALL the documents and papers and testimony.
    MG and I had a dispute about the the credibility of one in particular of the senior managers , but MG admitted that that man had lied.
    And I would say that your Lordship can come to that view too , evn without having seen him in the witness box.
    Lord D: but in so far as the majority do make observations on his testimony, they must have had something to go on….?
    Mr T: but what they are saying is something that no reasonable Tribunal could conclude, that how he dealt with HMRC had been merely legitimate adversarial tactics.
    Lord D: that doesn’t help me.

    Monday next, 9.30.am ( and will probably be 9..30 all week, but either party may choose not to start early)
    ——————————-
    Towards the end, it was getting quite exciting ( relatively!) with the judge seemingly quite puzzled as to how he can dispose of the case.

    Next week Mr Thornhill QC will do his best to rebut every argument that Mr T advanced.
    I’m genuinely curious as to how he will do this.
    And ( my heart skipped a beat!) I saw the redoubtable Dr Poon’s name listed as being on a FTT tribunal up the stairs on the third floor today. Sadly, though, if she was in the building, I never got sight of her.)
    And by a curious coincidence, the Kilmarnock Hibbie and I got the same bus home, getting off at the same stop. he was going to visit his brother ( maybe going to the game), and we had an entertaining conversation on the bus.

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  9. John Clark


    bogsdollox says:
    Friday, February 28, 2014 at 22:28
    ‘…….. Is Thornhill on stage on Monday morning?’
    ———
    I asked him at lunch-break ( we all have to hang around outside the tribunal room till the clerk unlocks it a few minutes before 2.00 pm.)
    He said that would be the case unless the HMRC QC overran his 5 days. I assume from the fact that Mr T had reached the stage of submitting his opinion of what needs to be done ( remittal to another fresh tribunal or judgment by Lord D) that he did not over-run.
    But I feel that the judge might ask him on Monday for a clear suggestion on the practicalities of addressing the credibility of the witnesses without having seen them actually give their evidence. I think he was thinking of the likelihood that the Tribunal had been able over 3 and a half days’ of watching them give their testimony and would have seen any shifty eyes and other tell-tale body language, tone of voice, undue hesitancy, change of sentence in mid-flow, and so on.None of which can really be told from the bare printed page.
    If so, then ,who knows,it might be quite late in the morning before Mr Thornhill gets involved.

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  10. John Clark


    Today’s proceedings in the UTTT.
    Team lists the same, with three members of the public(me, the Hibbie and the lurker from last week). No members of the press favoured the Tribunal with their presence. A fourth member of the public joined us in the afternoon, as did the MG Finance Director.

    Mr T reminded us that he had finished on Friday with the submission that the senior Manager who ran the EBT scheme had lied about things, and there was compelling evidence of his dishonesty in the passing of the envelope to Mrs O…., about which the Majority merely said ‘it disturbed us’ but that’s as far as they went.
    Mr T went on to say that ,in reference to the possibility of ‘remaking’ the decision, he had come to view that that needed to be discussed a little further.Because his challenge was not based on the fact that the Tribunal said ‘we heard [the senior manager] and accepted his testimony, but on the fact that no reasonable Tribunal having said ” It was very regrettable that he had been less than helpful [ in explaining the scheme as drafted] ;but the letters had been drafted by non-legal, laymen.” could have accepted that that was a good excuse.
    The man was not in the invidious position of speaking to a scheme he had not designed, because as the Minority had remarked, he had been central to the introduction of the scheme, and there is no distinction between his correspondence about the scheme both pre- and post- Baxendale-Walker’s involvement.
    And as for the Tribunal’s acceptance that the man’s correspondence about the operation of , the scheme was merely ‘adversarial tactics’ no reasonable Tribunal could arrive at that view in light of the 5-year concealment from HMRC of the side-letters.
    Failure to grasp the significance of the ‘passing of the envelope’ is an indicator of a broader failure to grasp the tenor of the evidence and joins a host of of other items of evidence that were ignored or avoided.
    Your Lordship had asked what was the significance of the man’s evidence.
    It is hard to identify any particular adminicles of evidence that had been addressed, because MG’s case did not put forward any evidence’ on which he was relying, since he based his case simply on the assertion that the the Trust was legal and not a sham, { it had not been HMRC’s case that it HAD been a sham!] , so other kind of evidence about the operation of it did not count.
    The importance of the dishonesty of the witness ( the operator of the scheme, the senior manager) lies not in his actual credibility about what should be believed, but in the fact that here was someone who had lied for 5 years and had painted a false picture of the scheme and its operation.
    The MG say these arrangements were not untoward, or about entering into contractual arrangements where part of the remuneration went through pay-roll and part through a remuneration trust, and there was nothing that meant that those RT payments were earnings.
    BUT I say the whole system was actively concealed from HMRC over 5 years, and the fact that the man actively hid the existence , by providing false information and concealing documents, is relevant to condidering the TRUE nature of the arrangements.
    And as for the man saying there was nothing secret about the side-letters well, that is pure nonsense.
    In the Majority decision there is no recognition of these issues.And in large measure that was because they addressed only the MG case ( the loans were at not at the recipients’ ‘unreserved disposal’) and considered the man’s actions as irrelevant. But they made comments that no reasonable tribunal could have made.
    Now, MG will say that if there was an error in law, the case should have been and should be remitted back.
    But Rule 34 ( of the rules that govern that kind of thing!) does not apply when we do have a full decision, a final determination, and I had told the First tier they had to make full findings of fact.In deciding to let my appeal go forward, the Tribunal allowed the appeal to go forward on the basis of what they HAD found as fact.
    [ Lord D: where can I find that?]
    Mr T: Core bundle 5 is the reference to the decision notice” The Chairman is not satisfied there is error in law and therefore a review cannot be undertaken”.
    [There wa s then a discussion about Rule 41.]
    Mr T said that he accepted that as a matter of practicality, since the Tribunal had not made full findings of fact they were not likely to reason for a review, so the proper course for me was to appeal.
    and given the comments made by the Tribunal, even had it been open to me to ask for fuller explanation, they would not be likely to have done.
    I re-iterate, there was simply no discussion of the issues, no addressing all the evidence, no discussion of Mr B’s change to pay-roll payment when there ceased to be any tax advantage in using the scheme.
    The Tribunal even defined the case in terms of the MG analysis.
    I say with great regret that this case cannot go back Tribunal.
    [Lord D: was there not agreement on the evidence to be considered?]
    Mr T: We tried. I’m not saying a remit cannot absolutely be made, but we have to have regard to what the best way forward is, in a very difficult situation ( length of time, expense…)
    If there were a fresh tribunal then the credibility of witnesses….
    [ Mr T then cited some guidance from the decisions in the Sinclair Rosh case,and the more recent Ranke case.
    From which emerges one compelling factor, namely the nature of the decision made. Where a Tribunal has ” so thoroughly committed itself that a reconsideration is not practical”
    I submit in the present case that the tribunal DID commit itself thoroughly to its decision, and that it is impractical to expect a fresh consideration.
    I submit that that is the key element.
    Your Lordship has the power to do it, to make your own findings of fact.
    [Lord D: can you point me to any case where this has been done?]
    No, m’lud. We are in uncharted territory.But you do have the power.It is not that you would have to see the witnesses in the witness box, because all the evidence is there.
    Mr T then moved on to some subsidiary points:
    SDM’s discussion with his colleagues about the best method of payment of his own (self-fixed) bonus payments, the two methods delivering the same thing-payment of bonus.
    And it was the same with all the other managers, on any realistic view , it was payment of bonuses
    MG will argue that SDM had no more control than anyone else: he had no contractual right to, or present entitlement to cash, and that he should be taxed only on what he was ‘entitled’ to.
    But MG miss the point: that one has to take a realistic view of the facts.
    [There were some other points about ‘non-competent’ beneficiaries, who were not entitled to payment under the Trust, or sub-trusts.( sons, their relatives, excluded under the terms of the Trust)
    The important point is that the Trustees acted on the request to open sub-trusts for such recipients. The fact they were invalid doesn’t alter the fact that it was ‘earnings’ that was being paid.
    There was a further point which related to the case of a recipient who had been receiving payment via pay-roll , but with Rangers all he got was payment quarterly via Trust. It cannot be suggested that if he had refused payment via trust he would not have been paid at all!
    And there was no proof that he was employed by Rangers-he had no contract with Rangers.It was for MG to produce evidence that he was employed by ‘Holdings’. They sat on the fence. Who was HMRC supposed to assess-MG, or ‘Holdings’ or Rangers?
    The onus was on the MG to produce evidence, because this was not a Ramsay type of argument.
    [ Lord D: your authority for that?]
    Mr T: it is always for the Appellant against a tax assessment before a First Tier tribunal, to show why they think the assessment is wrong ( the exception being Ramsay cases where the onus is on HMRC)
    [lord D: you say the Appellant did not make the case before the FTTT about wrong assessment?]
    Mr T: Yes. There was no clear evidence in respect of contributions made, and who was properly assessable.
    MG may say that the fact that some contributions were made as a reward for work.
    That was never the HMRC case.
    We were told that this particular man received £50,000, and £20,000 a quarter until May 2004.There was no evidence as to the source put before the tribunal, and no attempt by MG to tie these payments to that man.
    But regardless of source, HMRC are entitled to assess on ‘Holdings’ under ITEPA ; if a payment of PAYE income is paid by an intermediary, then the employer is treated as making the payment.So even if money came from Rangers or management, it does not mean the assessment was wrong, because it was incumbent upon the Appellan to show that ‘Holdings’ was the employer. And they did not do so.
    Even if it were appropriate to to acept the MG assertion that ‘Holdings’ are the wrong party, it would necessarily follow that another would be assessable. But MG never said who the correct party should be.
    [ there followed the whole business about ‘grossing up’ in order to pay the agreed net sum in cases where payment had to be made through pay-roll, so that the recipient got ‘net’ the whole total of what he had contracted for as salary, bonus etc etc, if it had been paid via trust.
    Bain’s letters to certain players said’ …payment via Remuneration trust is no longer benficial, so we are changing to pay-roll and grossing up. I hope that’s all right”
    This shows that the Rem trust was a means of payment and when it ceased to be, it was pay-roll grossed up.
    An email from one senior guy to another said ” ..agreed to gross-up to [ certain player whose name may not be made public] therefor no RT to be set up for him”
    And all the side-letters described the payments as being ‘net’
    And there was the willingness of RFC to give indemnities against tax to all, there is no evidence of any refusal to give tax indemnity.
    And Mr T concluded his submissions by observing that the MG seem not to have seen the difference between ‘sham’ and ‘cypher’.

    ———
    Mr Thornhill QC, began his response at 12.05. aiming to finish at 1.00 pm on Friday.
    His will confine himself to only those issues raised by his learned friend, although there are numerous points in his ‘skeleton’ which he has not put forward.
    His scheme is:
    to direct his lordship to the relevant statutory provisions
    to deal with some startling propositions that need to be cleared up right at the start
    go to the decision, because it is in fact a very clear decision that makes sense when understood in the context of the submissions
    having done so, I will take your Lordship through the alleged errors in law
    and the ??????????? Edwards(??/)) points [ I missed what that was]
    and then turn to the points that were left open by the Majority.

    And he began..
    ——————————————–
    And I finish here except to say that Mr Thornhill is easy to listen to without strain!
    More tomorrow.

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  11. Haywire


    Just had my baptism of fire at the UTTT. Somewhat amused that I had to bow to the Judge when I left early to catch my train south.

    Had an enjoyable chat with John Clarke who reckons that he may have seen me before somewhere – bit worrying that!

    Was not quite as dull as I thought it might be – one or two interesting discussions between the Judge and Mr. Thornhill. John will no doubt be supplying chapter and verse later in the day.

    He deserves all the plaudits he has been getting for sticking to his task. I think that he is concentrating just as hard as the Judge. He also thought that we might yet meet again for the 23rd Appeal in the House of Lords.

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  12. John Clark


    I attended tribunal today, but I haven’t the time at the moment to do any kind of report, other than briefly say that Lord D’s occasional questions put Mr Thornhill a little on the back foot once or twice. Thornhill spent the day trying to show that the First tier had in fact addressed themselves to every relevant issue raised by HMRC., and had made all necessary findings of fact. So there was no error in law on that score.
    I’ll try to get a decent summary cobbled up.
    Happy to say ‘Haywire ‘ made it in today, and the lurker who was here last week.

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  13. Finloch


    I’ve looked back but can’t find it.
    What is the address and what are the times of the hearing?

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  14. easyJambo


    There was meeting of a few TSFM posters at today’s UTTT proceedings. I will leave JC to provide the main update on the UTTT thread from his extensive notes, save to say that it was another interesting day with Andrew Thornhill seeking to rebut Roddy Thomson’s arguments for HMRC.
    Briefest of summaries:
    1) Arguments against HMRC seeking additional “findings of fact”, and that only “errors in law” should be considered by the tribunal.
    2) Analysis of the Aberdeen Asset Management decision. The Court of Session decision was accepted by Murray Group but they argue against it being similar to this case case because the AAM case involved shares and MGRT involved loans which did not place funds “unreservedly at the disposal of the employee”
    3) Extended analysis of the Sempra decision and its similarities to the MGRT scheme. HMRC lost that case, but appealed the decision, then a compromise agreement was reached but the details remain confidential.

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  15. Haywire


    Finloch says:
    March 5, 2014 at 4:55 pm

    Edinburgh Tribunal Centre, 126 George Street: kick off 09.30, second half starts 14.00.

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  16. Long Time Lurker

    Long Time Lurker


    Re attendance at UTTT – do you need to be seated before 09.30? Thanks.

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  17. jean7brodie

    jean7brodie


    Long Time Lurker says:
    March 5, 2014 at 8:17 pm
    Hi LTL
    I didn’t arrive till 9.40 and it was fine. The clerk comes out to get you and takes you in.

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  18. Long Time Lurker

    Long Time Lurker


    jean7brodie says:
    March 5, 2014 at 8:26 pm

    Thanks,

    Will be there tomorrow.

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  19. jean7brodie

    jean7brodie


    There must be someone on here very disgruntled at our reporting and even requests for info about the UTT 😉

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  20. Castofthousands


    Nice to meet you today Easyjambo. I’ll chip in my tuppenceworth to complement what JC is likely to post later.

    The court was much smaller than I anticipated with more than half of it taken up by the legals and just a few rows of seats at the back for the public. Lord Doherty is a relatively young man given his status and at times was a little daunted in the face of the elderly and knowledgeable Mr. Thornhill’s detailed discourse. However he was not intimidated and seemed to be following the argument keenly, asking questions when necessary.

    Proceedings are rather dry and refer constantly to precedent judgements (Proctor & Gamble, Garforth test, Aberdeen Asset Management, Brandor?, Dextra, McMillan, Ramsay principle, Sempra). In the absence of my own knowledge the atmosphere was somewhat claustrophobic and I commend JC for enduring its tribulations.

    Mr. Thornhill countered primarily on three of Mr. Thomson’s points of contention :

    1. That the loans were not emoluments (payment in kind), since the necessary orchestration had not been shown.
    2. The employees expectation was of receiving a loan.
    3. Emoluments should only include benefits immediately convertible to cash (cash box principle).

    The general strategy of Mr. Thornhill was to damn the HMRC case with faint disdain. He spent some time suggesting ways in which HMRC could have achieved their end but had foregone the opportunity to do so.

    The cash box principle was the subject of much of the deliberation. This revolved around how immediate employees access was to the funds and whether they had ‘the key’ to the cash box i.e. did they have immediate control of the funds.

    Another thrust was to pin the appeal down to only points of law. This appeared to be an attempt to limit the scope of the appeal but Lord Doherty felt that such a stricture would be debilitating to the proceedings.

    At one point Mr. Thornhill implied that loans could not be considered emoluments but Lord Doherty referenced case law that suggested otherwise.

    The Sempra case was gone over in great detail, being as Mr. Thorhill contested, the best analogy to the current case. For me the exposition was overly detailed but Lord Doherty seemed to listen intently and skimmed the documentation as he did so.

    The day concluded with Mr. Thornhill rebutting Mr. Thomson’s other points of contention.

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  21. jean7brodie

    jean7brodie


    Castofthousands says:
    March 5, 2014 at 9:06 pm
    ————————————————
    Great update and thanks very much for that CoT. You have obviously been there on a day that was busier than mine.
    I agree that Lord D does look quite young and that Mr Thornhill sounds very knowledgable. However I think (and hope) that looks and sounds can be deceiving!!

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  22. ianagain

    ianagain


    Thanks all for the updates.
    Interestingly Newey is a younger looking chap compared with the other protagonists down in the Rolls court in London. I wonder if the legals affect a “Rumpole” look deliberately.

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  23. ianagain

    ianagain


    Can any of you remember at any time, has the value of the players at he point of administration been mentioned so far?

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  24. John Clark


    I am running well behind, I’m afraid. Not enough hours in the day. But here is part of Wednesday’s proceedings in some detail. I’ll put more on this evening.
    “”Today’s (Wednesday 5th march 2014) proceedings at the UTTT.

    Mr Thornhill QC for MG, followed on from yesterday, and addressed an observation his lordship (Lord Doherty) had made, to the effect that in the present case, the complaint was that the Tribunal had not properly set out the factual basis of their decision.
    The majority, my Lord, had clearly had in mind my learned friend’s numerous factual points (see para 147 and other paras of their decision), and then took them into account, and concluded that they did not establish “an orchestrated scheme to pay emoluments and earnings”.
    They therefore had not misdirected themselves in law, because they clearly had in mind the Garforth test, and also understood that they had to apply that test on a realistic assessment of the facts.
    Finally, their finding on the question of ‘unreserved disposal’ is a finding of FACT, not law.(see Lord Glennie in the Aberdeen asset case)

    [Lord D:I have misgivings as to whether Lord Glennie’s analysis is correct, and it is not shared by the others]
    Well, m’lud, we can leave Lord Glennie aside, but I submit that the question of whether there was ‘orchestration’ is a question of Fact, not law.
    Now, if we get to that stage, then the jurisdiction of THIS Tribunal extends only to the questions of law. My learned friend speaks in his skeleton at para 49.1 of an ordinary appellate court in ordinary cases. But this is an appeal on a point of law from a specialist, expert tribunal. It is not a re-hearing in facts and law, and it is confined only to questions of law, or misdirection of itself by the Tribunal. The party appealing has got to attack the findings on the basis of the principles in the Edwards-Bairstow case.
    Now, my learned friend has raised about 12 points under Edwards-Bairstow, only 2 of which are critical:
    a) The evidence in the matter of the finding relating to ‘orchestration’
    and b) the finding that the employees’ expectation were that they would receive no more than a loan.
    If my learned friend succeeded in attacking either of those, he would have struck at the heart of the Majority’s decision, and the question would be entirely open.
    His difficulty is that he would need to establish certain facts, many of which are controversial.
    Your Lordship will recall that MG earlier had relied on two cases:
    ‘Georgiou’: in which it is made clear that the appellant has to establish facts on the Edwards-Baistrow principles
    Brander: where the appellant contended that there are facts that point to the opposite conclusion from that which was reached by the Tribunal.
    My learned friend avoids the Brander reference, because he has to demonstrate that the facts are uncontroversial, whereas in this case they are highly controversial.
    It is also the case that it is not the task of a FTTT to set out every finding on both sides, but only the facts that led to their conclusion.
    And, I submit, that is what the majority did. They may be criticised, perhaps, for not setting out their disagreement with all of my learned friend’s observations.
    But that in fact is what they are saying, and it may be noted that Dr Poon used the same summary to encapsulate my learned friend’s points.
    The points I have just been making are in the Appendices to the MG arguments, which contain all the authorities. Some of these are:
    Procter &Gamble, in which Lord Mummery said: “the issue on appeal is on a matter of law, the Appeal is not a re-hearing”. In our case, the tribunal, I submit, did listen to the evidence, did get the law right, and whether one agrees with the decision or not is not the point.
    [Lord D: that’s a fairly trite proposition..]
    yes, m’Lord. I’ll just move on to the Georgiou case in relation to the Pendragon case, where Lord Justice Evans says” there has to be caution in making findings of fact equate with findings of law. The question is: was there evidence sufficient to support the decision made? An appellant must identify the findings he challenges, not merely make generalised observations”
    I submit my Lord, that if there are positive findings of the tribunal, these would have to be successfully attacked by my learned friend. Instead, my learned friend brings in findings that he says should have been made but were not.
    I take my Lord to the Brander case before Lord Hodge and Lord Oliphant. This was an Inheritance Tax case, where a question arose as to whether the first decision had been sufficiently supported. In the case of ‘uncontested’ evidence, the Appeal judge might be enabled to make new findings which point to a different conclusion.
    My submission is that if facts are ‘contested’ they cannot be introduced at the Appeal stage.
    In this present case, the evidence of [two witnesses] was less than honest. The tribunal recognised that.
    And the fact that the Auditors might not have known all the details of the working of the scheme was accepted by Majority.
    But so what? Neither of these was probative of HMRC’s view of what the true nature of the scheme was.
    Where there is a question of controversy, though, e.g. that employees had no expectation that they would receive something other than a loan, matters are different. There is no way your Lordship could establish that fact.
    [Lord D: but there must be cases of contested evidence when the Appeal judge ought to have made findings, must be cases where tribunals fail to deal with material facts?]
    My Lord, we would not accept that the majority failed to deal with HMRC’s points on
    -‘orchestration’
    -on ’employee expectations’
    -on whether the Trust structure was of practical effect
    They said in effect that my learned friend had NOT established these elements. That is, none of these facts, taken individually or collectively, established in the Majority’s mind the claim that money was put unreservedly at the disposal of the employees.
    And these findings are enough for the tribunal to reach a decision.
    (More to follow)

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  25. Sugar Daddy


    Great work from all who attended.

    Good to read that Lord D is testing both QCs argument & how the QCs take the “punch on the chin” and quickly move on to their next point.

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  26. easyJambo


    Sugar Daddy says: March 6, 2014 at 9:00 am

    Great work from all who attended.

    Good to read that Lord D is testing both QCs argument & how the QCs take the “punch on the chin” and quickly move on to their next point.
    ===================================
    It’s a fair observation and indeed Thornhill readily admitted that Ian McMillan (Murray’s tax guru) had misled the FTT. However he went on to say that it didn’t affect the outcome, as the decision of the majority was rightly based on their interpretation of the legal status of the orchestration of activities, the employees expectations of getting a loan and the structure of the trusts.

    I think there are certainly risks for Thornhill by avoiding or dismissing the credibility issue of McMillan as he certainly was the key player in the orchestration, setting employee expectation and establishing the trust. If Lord D does give some weight to the credibility argument, then it should also undermine the majority’s findings.

    Thornhill may be pre-empting such an outcome by spending time yesterday morning with the arguments that JC has outlined above about the jurisdiction of the UTTT not being able to make further “findings of fact” from the evidence to the FTT and must restrict itself to “errors in law”. The argument being that all three tribunal judges had heard the same evidence and two of them had interpreted it in one way and one in a completely opposite way. That is fair and just the way the system works.

    No new evidence is being presented to the UTTT, so the decision of the majority based on the evidence presented should stand, unless HMRC can show that the majority’s decision was one that no fair minded tribunal could have made. (That’s a pretty high test)

    I think the jury is out (pun intended) on the outcome. As a layman, I can see strong arguments on both sides. I must say that if Thornhill was fighting the case on behalf of HMRC, he would be equally effective in presenting his arguments. He is a very able QC.

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  27. blu


    easyJambo says:
    March 6, 2014 at 10:28 am
    Thornhill may be pre-empting such an outcome by spending time yesterday morning with the arguments that JC has outlined above about the jurisdiction of the UTTT not being able to make further “findings of fact” from the evidence to the FTT and must restrict itself to “errors in law”. The argument being that all three tribunal judges had heard the same evidence and two of them had interpreted it in one way and one in a completely opposite way. That is fair and just the way the system works. ===================================================================
    easyjambo,
    I fear that this argument will hold and Lord Doherty’s findings (anyone any idea of timescale for publishing?) will be of the law’s an ass variety, again, despite all logic, commonsense and MIH witnesses pointing to MIH creating a scheme to pay wages without paying any tax. All designed to recruit players of a quality Rangers couldn’t otherwise afford.

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  28. easyJambo


    blu says: March 6, 2014 at 1:03 pm

    All designed to recruit players of a quality Rangers couldn’t otherwise afford.
    ================================
    Thornhill actually said as much in today’s proceedings, saying that the club couldn’t afford the players they recruited if they had to gross up the EBT earnings and pay NIC through PAYE.

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  29. valentinesclown

    valentinesclown


    Is tomorrow the final day of the appeal or will it carry on till next week.

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  30. easyJambo


    valentinesclown says: March 6, 2014 at 7:57 pm

    Is tomorrow the final day of the appeal or will it carry on till next week.
    ==================================
    Should finish tomorrow afternoon. Thornhill expects to finish by 1pm and Thomson for HMRC has another hour or so to do for his final bit

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  31. valentinesclown

    valentinesclown


    Thanks EasyJambo I shall be there tomorrow.

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  32. John Clark


    CONTINUATION of post of 5th march
    Wednesday 5th March UTTT hearing.

    (I should have explained that references to para this or para that are usually references to the decision of the Tribunal which you all know can be downloaded. But there are one or two references to paras in the skeleton arguments submitted by counsel to the judge, which we don’t get to see.)

    Mr Thornhill QC for MG, followed on from yesterday, and addressed an observation his Lordship (Lord Doherty) had made, to the effect that in the present case, the complaint was that the Tribunal had not properly set out the factual basis of their decision.
    The majority, my Lord, had clearly had in mind my learned friend’s numerous factual points (see para 147 and other paras of their decision), and then took them into account, and concluded that they did not establish “an orchestrated scheme to pay emoluments and earnings”.
    They therefore had not misdirected themselves in law, because they clearly had in mind the Garforth test, and also understood that they had to apply that test on a realistic assessment of the facts.
    Finally, their finding on the question of ‘unreserved disposal’ is a finding of FACT, not law.(see Lord Glennie in the Aberdeen asset case)

    [Lord D:I have misgivings as to whether Lord Glennie’s analysis is correct, and it is not shared by the others]
    Well, m’lud, we can leave Lord Glennie aside, but I submit that the question of whether there was ‘orchestration’ is a question of Fact, not law.
    Now, if we get to that stage, then the jurisdiction of THIS Tribunal extends only to the questions of law. My learned friend speaks in his skeleton at para 49.1 of an ordinary appellate court in ordinary cases. But this is an appeal on a point of law from a specialist, expert tribunal. It is not a re-hearing in facts and law, and it is confined only to questions of law, or misdirection of itself by the Tribunal. The party appealing has got to attack the findings on the basis of the principles in the Edwards-Bairstow case.
    Now, my learned friend has raised about 12 points under Edwards-Bairstow, only 2 of which are critical:
    a) The evidence in the matter of the finding relating to ‘orchestration’
    and b) the finding that the employees’ expectation were that they would receive no more than a loan.
    If my learned friend succeeded in attacking either of those, he would have struck at the heart of the Majority’s decision, and the question would be entirely open.
    His difficulty is that he would need to establish certain facts, many of which are controversial.
    Your Lordship will recall that MG earlier had relied on two cases:
    ‘Georgiou’: in which it is made clear that the appellant has to establish facts on the Edwards-Baistrow principles
    Brander: where the appellant contended that there are facts that point to the opposite conclusion from that which was reached by the Tribunal.
    My learned friend avoids the Brander reference, because he has to demonstrate that the facts are uncontroversial, whereas in this case they are highly controversial.
    It is also the case that it is not the task of a FTTT to set out every finding on both sides, but only the facts that led to their conclusion.
    And, I submit, that is what the majority did. They may be criticised, perhaps, for not setting out their disagreement with all of my learned friend’s observations.
    But that in fact is what they are saying, and it may be noted that Dr Poon used the same summary to encapsulate my learned friend’s points.
    The points I have just been making are in the Appendices to the MG arguments, which contain all the authorities. Some of these are:
    Procter &Gamble, in which Lord Mummery said: “the issue on appeal is on a matter of law, the Appeal is not a re-hearing”. In our case, the tribunal, I submit, did listen to the evidence, did get the law right, and whether one agrees with the decision or not is not the point.
    [Lord D: that’s a fairly trite proposition..]
    yes, m’Lord. I’ll just move on to the Georgiou case in relation to the Pendragon case, where Lord Justice Evans says” there has to be caution in making findings of fact equate with findings of law. The question is: was there evidence sufficient to support the decision made? An appellant must identify the findings he challenges, not merely make generalised observations”
    I submit my Lord, that if there are positive findings of the tribunal, these would have to be successfully attacked by my learned friend. Instead, my learned friend brings in findings that he says should have been made but were not.
    I take my Lord to the Brander case before Lord Hodge and Lord Oliphant. This was an Inheritance Tax case, where a question arose as to whether the first decision had been sufficiently supported. In the case of ‘uncontested’ evidence, the Appeal judge might be enabled to make new findings which point to a different conclusion.
    My submission is that if facts are ‘contested’ they cannot be introduced at the Appeal stage.
    In this present case, the evidence of [two witnesses] was less than honest. The tribunal recognised that.
    And the fact that the Auditors might not have known all the details of the working of the scheme was accepted by Majority.
    But so what? Neither of these was probative of HMRC’s view of what the true nature of the scheme was.
    Where there is a question of controversy, though, e.g. that employees had no expectation that they would receive something other than a loan, matters are different. There is no way your Lordship could establish that fact.
    [Lord D: but there must be cases of contested evidence when the Appeal judge ought to have made findings, must be cases where tribunals fail to deal with material facts?]
    My Lord, we would not accept that the majority failed to deal with HMRC’s points on
    -‘orchestration’
    -on ’employee expectations’
    -on whether the Trust structure was of practical effect
    They said in effect that my learned friend had NOT established these elements. That is, none of these facts, taken individually or collectively, established in the Majority’s mind the claim that money was put unreservedly at the disposal of the employees.
    And these findings are enough for the tribunal to reach a decision.
    (More to follow)

    CONTINUATION of Wednesday’s hearing:(posted Thursday evening6th March)
    My learned friend can say that that the inference of facts could have been made on the ‘uncontroversial’ facts. But if he does go that way,that is the path of the brander decision. Now, he has had 2 opportunities to follow that path-but he has said this is not a Brander case.
    My learned friend simply set out a whole series of ‘facts’, of which many are controversial ( e.g. the UEFA Famagusta dispute between players and manager) but that is not the Brander payh at all. He has created the difficulty of which he complains.
    All that is left to him is to attack, on the Edwards-Baistrow principles, the 3 critical findings.If he could do that, successfully, then well and good.
    But in my submission, that is the only issue left in this appeal.
    He has identified several areas where, he says, the MG erred in law, but we will come to that.
    There is a further paragraph in Brander “ The UTTT is not in a position to reconsider, it is not a re-hearing, and it is not for counsel to cherry-pick which points to put forward.”
    Your lordship can, I think, see that when it comes to contested matters, it is not allowed to bring these forward at a higher Court.
    If your Lordship were to say that some of the alleged facts, suppose the Tribunal should have made specific findings, my learned friend could have listed the uncontroversial facts and try to argue that money was ‘unreservedly put at the disposal of the employees. But he did not.
    There is one further authority, m’Lord: the London Clubs case, a V.A.T. Case in which the complaint was that the FTT erred in law by ignoring certain management accounts.
    This was critical material in HMRC’s view.They attacked the decision on the grounds that the FTTT failed to take account of the ‘accounts’ which showed that the catering element of the gambling business was NOT a separate business.
    My lord, the principle seen in that case is that a finding based on the management accounts was remarkably benign, but it was not the Appeal tribunal’s job to challenge it, under Edwards-Baistrow, because it was too late.
    And it is of no use to say that if it had been, the decision might have been different.
    In our case, my learned friend has to attack the conclusion and say that NO reasonable tribunal could have arrived at that conclusion.
    I move on to consider to consider the alleged errors in law, one by one.
    First, my learned friend’s criticism that the Majority failed to make findings in fact and that the findings in para 103 of the Majority’s decision are not sufficient.
    But, my Lord, it is not necessary for Every point to be specifically acknowledged, as long as there is enough to support the decision.
    He complains that HMRC facts had been ignored.
    But para 147 et seq set out my learned friend’s material, and this was in the Majority’sminds. And they were not probative as to what the nature of the scheme was, in any case.
    My learned friend also complains that the Tribunal failed to identify what the ‘composite transaction’ was.
    But it is clear what the Tribunal thought the ‘composite transaction’ was. (Para 103 and para 231 of
    the decision)
    [Lord D: what are they identifying there? Para 231 does not mention side-letters.]
    No, my lord, it does not, but 231 should be taken with para 103, which shows the side-letters etc, and that was the transaction, looked at both commercially and legally.
    Now, in advancing his argument as to the error in law of failure to find fact, my learned friend relied on the Grange case, the Morrow case, and the Statement of principle in the Sheriff Court Rules.
    But no analogy can be drawn between between obligations on a Court in an ordinary civil case, and the narrow area of tax appeals.
    However, if we had to argue the point, the Letham-Grange case does NOT establish my learned friend’s point.
    ( We had reached 11.00 a.m. And I had to leave to attend to some private busines, but returned for the re-start after lunch)

    After Lunch, Mr Thornhill began by saying My Lord, we had been discussing the 3rd alleged error of law. I will end by saying that your Lordship has seen that in the Aberdeen case, the ‘cash-box’ element was isolated.

    The fourth alleged error is also related to the Ramsay case.
    My learned friend said that if you go to para 186-discussion of ‘loans, emoluments’, my learned friend says it may have been a loan or may have been something more.
    He said that the Majority did not look at the whole ‘composite transaction’.
    But I submit there was no clear indication of what the ‘composite transaction’was. So the Tribunal put forward their own view (at para 231) that the Trust scheme is straightforward.
    Obviously the Majority were alive to the fact that there there might be ‘more’ (para 232), but they are unable to make a finding of fact, in spite of considering with care all my learned friend’s points.
    And they also dealt with the powers of the ‘Protectors’ (para 224)
    The fact that they did not make the findings that my learned friend wanted is neither here nor there.
    As regards the second leg of complaint under this heading,I simply refer to Para 220, wher the Tribunal says “ we cannot accede to Mr thomson’s proposition that payment of monies into the Trust represents payments of emoluments or earnings……there was not an absolute transfer of funds from employer to employee..”
    [ I should explain that on Tuesday Mr Thornhill had gone through in great detail what the law says about what constitutes earnings and what ‘unreserved disposal’ means]

    On the Fifth alleged error of law: my learned friend said that the Mayes case was the central authority relied on by the Majority. Now, it is undoubtedly referred to at some length from Para 191.
    What the Majority get out of it is at para 193: “ In short, the application of Ramsay to strike at tax saving arrangements may be fettered in a context where there is already a highly prescriptive statutory code and also enforceable legal structures in place..”
    To say Mayes is central to the Majority is too high: it is merely a step in their argument.
    [ Lord D: highly restrictive code. But it could deal with with the provisions on beneficial loans ]
    Yes, my Lord, it could include that, but then they do go on to Schedule E and the emoluments charge.
    But your Lordship is quite right.They did take the beneficial loans provisions into account. But whether these are prescriptive, No. Whereas to be at ‘unreserved disposal’ is a requirement in regard to the taxation of emoluments.
    [Lord D: A prescriptive requirement?]
    Lord Hodge said it imposes a rather narrow interpretation.
    And the Tribunal could simply have noted the restrictions in Ramsay, but there is a reference to ‘enforceable legal structure.’. Which does not come out of Mayes, and is more like a reference forward to ‘long-lasting structure set-ups.
    And para 223 reinforces this. My suggestion is that that is the proper interpretation of the last two lines of para 123.The structures were not just short-term artificial structures, but were designed to be longer lasting, with real legal effects.
    If I’m right, it’s not really of fundamental importance. The case of Mayes itself can hardly be regarded to have much influence on the matters in hand, relating as it does to a different area of law, extremely abstruse.
    But whether or not Mayes had an effect, the finding that loans were placed at unreserved disposal would be a finding of fact , not law: all part and parcel of what was the result of the transaction. Lord Glennie and Lord / took the same view.

    The Sixth alleged error of law: the error alleged here is that the Majority took the view that if the scheme was not a sham, they just had to accept it as it was.
    But, my Lord, that is not what they did. They certainly recorded the fact that no one was arguing that it was a sham, but right at the outset (para 190) they recognised that they should adopt a ‘purposive’ interpretation of ‘earnings’, and that the Ramsay approach entails an unblinkered approach. And in para 200 again, they accept that the interpretation of ‘payment’ has to be purposive. In their final conclusion (para231) they say that whether the arrangement was viewed commercially or legalistically, the payments were loans and they do not regard the liability to make payment as a ‘remote contingency’.
    There was another contention, to the effect that the scheme was designed to be operated in breach of Trust, because the Trustees were not legally able to make loans to non-beneficiaries. But in my submission, there are flaws in this contention. The designer of the scheme could have included non-beneficiaries, and in point of fact nearly ALL the employees were not excluded persons, and could have been made beneficiaries.
    So the answer to the question of whether there was ‘more’ is no.
    The Seventh alleged error relates to HMRC’s assertion that MG treated HMRC’s evidence as irrelevant.
    The MG submitted that a good deal was only marginally relevant, and some was entirely irrelevant, e.g. whether the Auditors understood the full operation of the scheme is not determinative of what the scheme was.
    Likewise, the UEFA pre-CL match dispute between players and manager over bonuses is ultimately irrelevant because any bonuses only became payable after the game and only if it had been won.
    So it is quite wrong to say the Majority ignored the evidence. They looked at it, and attached little weight to it in many instances.
    And it is clear from para 232, my lord, that they considered matters with some care.
    ( more to follow)

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  33. Long Time Lurker

    Long Time Lurker


    It was good to meet JOHN CLARKE, EASYJAMBO and others at the UTTT today.

    If you can, go Friday for the afternoon session c 14.00 – as both parties will then sum-up.

    The main stand-out point for me today was the admission of the Murray Group QC that Rangers could not afford to put a team on the park without the EBT scheme.

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  34. John Clark


    UTTT (last piece of wednesday’s report)

    The eighth alleged error is based on the DTE scheme, and the fact that Lord Justice Parker held that ordinarily ‘payment’ means actual payment of cash or equivalent.But this does not mean (something or other: I didn’t hear what!)
    It is a non-point, my Lord.

    The 9th alleged error in law: my lord, this is related to the McNiven case.My learned friend contended that that allowed the transactionto be real for some purposes but not for others.Dr poon accepted that opinion. The error of law put forward is that the employee got a loan but not a loan.
    But that opinion is not universally accepted in the Authorities.
    This was a case of ‘ incurring expenditure’ where Barclay -? paid out lots of money which went into various channels. The House of lords gave general guidance on the the point that ‘expenditure’ means to put oneself under liability to pay.
    In the McNiven case, the taxpayer got a loan to the interest on an earlier loan.
    [Lord D: I’m not sure the passage addresses the point Lord Hoffman made]
    My Lord, Lord Hoffman said yes, there had been a payment. The point was that if you had a debt and a payment was made, that’s it. Where does the concept that a payment can be a payment in one respect but not in another? I refer to Dr Poonpara 199 “ loans can be real for juristic purposes but not for commercial purposes”.
    But were these loans or not?
    My learned friend says that there was no commercial purpose in the loanexcept to put money ‘unreservedly at disposal’. The Tribunal may well have thought the loans had strange features, but were still loans.
    ( there was then a look at the Astall case, and Mr Thornhill submitted that the McNiven case does not provide authority. And the Majority did not think it did, either)

    Error 10, m’Lord, is to do with the Sempra case, which has a close similarity to our own.
    [ Lord D: but there is no Heaton and Bell issue?]
    No, m’Lud. As long as a choice was made before entitlement arises. And the Revenue manuals themselves can be referenced.
    [Lord D: even if there was a choice to go back on pay-roll?]
    No. m’Lud. Once a particular payment was put in Trust, it stayed there.
    ( There then followed at least a half hour’s reading by Mr Thornhill of the Sempra case. Hard going, and I had no idea why he read it, having lost any thread. )
    Then: My Lord I have taken you through the Sempra case in detail because of its similarity to the present case. HMRC did appeal to the High Court, and there was compromise…
    Your Lordship has seen it was considered by….
    [Lord D: no, only a hint….no real discussion.]
    Yes, m’Lord. There has been no judicial consultation of the Sempra case. My learned friend is entitled to say that he does not think it was the right decision.
    In some ways. The facts of Sempra are more extreme, in that when they have the Family benefit Trust, loans are made to non-employees who have no income.
    But leaving aside whether the case was rightly or wrongly decided, there is a point of contrast. The Director who ran the trust company :
    “ The Trustee was likely to comply with the reasonable requests to make payments but we believe he exercised discretion”
    And that was the point which concerned our Majority. But in their conclusion the Majority took full account of the criticisms of Mrs Crimson in para 225:
    they accept a degree of orchestration, and the operation of Trident came under scrutiny. But it was the legal effectiveness of the Trust that they recognise in their findings.
    My learned friend has a number of criticisms of those findings:
    he does not accept what the Majority say about Mrs crimson
    he does not accept that Equity acted properly as a Trustee
    he makes the point that Trustees were protected by indemnities
    and he asserts that there was not likely ever to be another truste
    But the Majority say that it is the ‘Institution’ of theTrust itself, not the trustee, that is important.
    The loans were loans, with real possibility of repayment. There was an enforceable legal structure.The loans were TRULY loans.
    And although the facts in Sempra are different, they are not materially different.
    The fundamental question was: was there a Trust, on a long-term basis?
    The majority said Yes.
    Now, some might say that that was a benign finding.
    But without a successful attack in terms of the Edwards-Baistrow principle, the Majority view must stand.
    If my learned friend cannot destroy it, he cannot succeed.
    I will, my Lord, discuss the remaining alleged errors tomorrow.
    Tribunal adjourned until 9.30 a.m tomorrow (Thursday).

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  35. ianagain

    ianagain


    Man o man John
    How you do this is beyond me.
    Utterly fantastic.

    I will say the judge is going to need a week at least to absorb all this. Don’t see an early decision. If we do Ill be stunned.

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  36. Auldheid


    easyJambo says:

    March 5, 2014 at 5:38 pm

    2) Analysis of the Aberdeen Asset Management decision. The Court of Session decision was accepted by Murray Group but they argue against it being similar to this case case because the AAM case involved shares and MGRT involved loans which did not place funds “unreservedly at the disposal of the employee”
    ==============
    It was the Aberdeen Asset Management case that created the precedent that allowed HMRC to pursue Rangers for settlement on the wee tax case. So (back on my blog hobby horse) the ebts paid to De Boer and Flo constituted tax evasion and this was accepted by Rangers but tat information withheld from the SPL in spite of the contracts happening after July 1998 and involving side letters not registered with the SFA. So how can they be not irregular if Rangers had already accepted that they were as they did in Feb 2011?

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  37. John Clark


    UTTT proceedings on Thursday 6th March. ( up to a point)

    ” UTTT Hearing Thursday 6th March 2014

    (Mr Thornhill, QC for the MG, continued where he had left off on Wednesday.)

    UTTT Hearing Thursday 6th March 2014 ( in part: more will follow)

    (Mr Thornhill, QC for the MG, continued where he had left off on Wednesday.)

    The Tenth alleged error in law, my Lord relates to Sempra. My learned friend says that the Majority should have decided that whereas MT Gitting in the Sempra case was held NOT to be a ‘cypher’, in this case the trustees were ‘cyphers’., a term first used in Dextra- an appropriate term for a trustee who simply does what the employer wants.
    But the particular relevance in this case is that they would hand over ‘unreservedly’ to the employee.
    In my submission, what the Tribunal should have concentrated on is if the Trustee would hand over simply on the employer’s say-so. (para 231) ‘we do not regard repayment as a remote contingency’.
    The fact is that there was a real chance of the loan being recovered, and that shows that money was not put at the employees disposal.
    Apart from that, another finding at 227. In the case of players who left Rangers, the legal structure could be disassembled only with the consent of the person.
    And at 232, the Tribunal found that Mrs crimson was acting in the course of administering the Trust. She was not doing just what anyone wanted her to do.
    At 232(3) the sums paid were made in pursuance of discretionary power.
    My submission is that the tribunal had no need to distinguish Sempra.
    My learned friend says Semprs was wrongly distinguished. But I say that nothing short of ‘unreserved disposal’ is not sufficient to establish payment.
    There has been, my Lord, an eventual acceptance of that, because in new legislation a loan will be taxed ( because a repayment liability will be ignored)
    [Lord D: if Sempra HAD been wrongly decided..?]
    Well, my Lord, if the practical liability to repay was very low, then it would perhaps have been ‘unreserved disposal’. But where draw the line?

    The Eleventh alleged error in law: this is a repeat of the point in the Barclay mercantile case judgment: see Lord Mc Nicholl’s.
    The argument is that you should construe the legislation and apply it realistically.
    My learned friend says you don’t do it in two stages.
    My reply is that it doesn’t matter as long as you construe the the statute ‘purposively’.
    And it is clear that that is what the Majority did do.
    So there is nothing in my learned friend’s point.
    My learned friend next said that they not distinguish Dextra (para 236).
    My Lord, Dextra: this is the report in the Tax cases, and they wait until the cases have gone the distance.
    In para 148, where the Special Commissioners’ case starts, it was only the deductibility issue that went to the House of Lords.
    The taxability issue went no further than the Special Commissioners.
    The case concerned a series of companies, a mobile phone business owned by two companies, and concerns the taxability of EBTs for wives, mothers, other named family members.
    ( here Mr Thornhill read from the case.)
    My Lord, ours is a very similar case. The Commissioners set out the legislative provisions, then decide that Section 43(1) did not apply, but that view was overturned in the House of Lords, and nothing turns on it in the present case.
    HMRC’s alternative was that the allocation of funds into Trust was a benefit in kind, and contends that since it is a ‘motivator’ it has to be a benefit, and says that the Trustee was not expected to do anything other than pay.
    Mr Thornhill contended that Bennet’s view would result in double taxation, and the Commissioners were not convinced by Bennet’s ‘double taxation’.
    The Commissioners said that the other point had to be decided on the facts, of how the Company motivated their employees, and of the ‘phantom shares’ option.
    (Here Mr Thornhill continued reading until 10.30 a.m.
    Then he said
    So, your Lordship can see that Mr Brennan was making similar points as in the Sempra case and in this case., putting money into a ‘cash-box’ from which the employee could draw at will
    My learned friend does not contend the Dextra case was wrongly decided, because the facts are stronger.
    On the other hand, the two brothers controlled the company and had power to remove the Trustees.
    The parallel in this case is Sir David Murray. The question your Lordship has to address is not to make a minute comparison-the issue is one of principle: Can it be said that money has been placed at the ‘unreserved disposal’ of the employees?
    The way the Majority approached it was hold 9in paras 231 and 232) that the loans were made genuinely in exercise of of discretion with real prospect of recovery. That is the fundamental point. To the Commissioners the loans were repayable, in Dextra.
    Your Lordship will see that the term ‘cypher’ originates in Dextra. And we can see what the Commissioners had in mind in para 161: “….only if the Trustee is inevitably compelled to comply with the wishes of ..”
    In our case, all the trustees have done is lend money, and it is found as a fact that they are true debts, repayable, and that there is no expectation of other than a loan, and that if and when further transactions occurred this was only with the agreement of trustee, Protector and other beneficiaries. (Para 227)
    So, in my submission, although the facts may be different in this case, the Majority applied the principle.,and did not err in law.
    The next supposed error in law that my learned friend claims is that the Majority were unaware or disregarded the fact that ‘unreserved disposal’ is NOT a prerequisite in ALL cases.
    I say that the Tribunal was aware, because they refer to the case of Heaton and Bell, and there it was the Chairman who brought up Heaton and Bell and asked the parties to consider its relevance.(para 205 shows it was part of the reasoning of of the Majority.)
    And your Lordship will recall that if an employee can choose to revert to receiving cash, and give up the benefit, it turns into an emolument or earnings.
    My Lord, Heaton and bell is referred to three times, at paras 127, 139 and 205.
    So I say the proposition of my learned friend is ill-founded.
    Possibly, however, the real burden of his complaint is that the Majority did not address two of my learned friend’s arguments. If that were the case, it would be error, and he would be within his rights to seek remittal. These two arguments were- an argument in relation to ‘ underlying tacit agreements’, and an argument in relation to ‘directed payments’.
    Is my learned friend correct that these arguments were not addressed?
    My reply is: as far as the ‘underlying tacit agreement’, in para 224, the Majority find “we consider the employees benefiting did not obtain an absolute legal entitlement to the monies..” They also find in para 231 “loans were discretionary”, and then in 232 “we are unable to make further Findings -in-fact in support of there being an orchestrated scheme….”
    All those conclusions, my Lord, run completely counter to the ‘underlying tacit agreement’ argument. I refer to paras 181,182,183. The whole point and thrust of my learned friend’s submission was that there was an underlying agreement that the funds would become the property of the employees. The three paragraphs quoted are inconsistent with there being any such agreement.
    The second argument, ‘directed payment’ is in my learned friend’s submission in para 214 . But perhaps it is sufficient to say that it depended principally on ‘choice’. And the thrust was that even if an employee chose the remuneration trust method of payment he would always have the alternative of cash payment. And that argument is dealt with in para 205 as regards executives, and 207, 208 in regard to footballers.
    My lord, in para 205 in relation to executive bonuses, your Lordship has seen this several times, “line 24 “…. while the views of the individual employee would be canvassed..” They do go on to say ‘… he never had an enforceable claim to bonus.’. But that doesn’t really matter as long as choice was exercised before any payment was made.
    So, the majority says that even if there was a choice, it disappears once a particular way of payment has been agreed. There was never a choice to go back to pay-roll and receive cash.
    As far as footballers were concerned, the majority dealt with them in para 207, the critical words being in line 6 to 9, ‘This [the net figure]could be maximised via the trust mechanism, and moreover could only be afforded by the club that way. A ‘deal’ would be offered by the club only on a ‘take it or leave it basis’
    There has been some argument about these words.
    Our submission is that as far as the club was concerned, it became a ‘take it or leave it’ deal. The footballer had no right to say ‘I don’t want that deal, I’ll have the cash”
    The reason why is the economic reason in the preceding paragraph. It takes up the whole point that it enables the club to recruit football players whom the club could not otherwise afford.
    But if there was a ‘take it or leave it’ situation it would strike at my learned friend’s case. If your Lordship would turn to my learned friend’s submission para 215, it was in that para that my friend used the words ‘take it or leave it’…
    [ Lord D: where?]
    ( whisper from Mr T to Mr Thornhill)
    I have been advised by my learned friend the expression came from the chairman. Para 215,.my Lord.
    It would not be surprising if the Majority had these words in their minds when they made the findings in 207.
    In other words, once you had decided that payment was to be through the trust, you had no choice to go back to pay-roll.
    And if an alternative way of paying could have been made, it could not have been for the same sum.
    Your Lordship can see in para 16 ..
    ( Mr T asks MR Thornhill to read the whole of para 215.)
    [ Lord D: I have read it….. I struggle a little to see what you are saying about what the tribunal are accepting?]
    That once a deal had been accepted , say, for £100 salary and £100 in trust, once that deal…
    [Lord D: but we’re not talking about deal being made, only offered..]
    Yes, my Lord. But once the MG negotiations had been completed about some to payment, some to trust, he couldn’t say no, I’ve changed my mind. The die was cast, once the split had been agreed.
    [ Lord D: that’s a rather different point from para 207, which is talking about offers, not deals]

    Yes, my Lord. Deals were offered and turned into agreements, and the die was cast. You can see in the negotiations that different amounts are discussed, but once crystallised it was offered on a ‘take it or leave it’ basis, until re-negotiation.
    So on that basis my learned friend’s argument has been taken into account. And further, if the new directed payment argument is to be used, the Heaton Bell case applies…. since ..footballers had on the one hand salary, and on the other, payment through EBT.
    I hope that does justice to my learned friend.

    The Tenth alleged error in law, my Lord relates to Sempra. My learned friend says that the Majority should have decided that whereas MT Gitting in the Sempra case was held NOT to be a ‘cypher’, in this case the trustees were ‘cyphers’., a term first used in Dextra- an appropriate term for a trustee who simply does what the employer wants.
    But the particular relevance in this case is that they would hand over ‘unreservedly’ to the employee.
    In my submission, what the Tribunal should have concentrated on is if the Trustee would hand over simply on the employer’s say-so. (para 231) ‘we do not regard repayment as a remote contingency’.
    The fact is that there was a real chance of the loan being recovered, and that shows that money was not put at the employees disposal.
    Apart from that, another finding at 227. In the case of players who left Rangers, the legal structure could be disassembled only with the consent of the person.
    And at 232, the Tribunal found that Mrs crimson was acting in the course of administering the Trust. She was not doing just what anyone wanted her to do.
    At 232(3) the sums paid were made in pursuance of discretionary power.
    My submission is that the tribunal had no need to distinguish Sempra.
    My learned friend says Semprs was wrongly distinguished. But I say that nothing short of ‘unreserved disposal’ is not sufficient to establish payment.
    There has been, my Lord, an eventual acceptance of that, because in new legislation a loan will be taxed ( because a repayment liability will be ignored)
    [Lord D: if Sempra HAD been wrongly decided..?]
    Well, my Lord, if the practical liability to repay was very low, then it would perhaps have been ‘unreserved disposal’. But where draw the line?

    The Eleventh alleged error in law: this is a repeat of the point in the Barclay mercantile case judgment: see Lord Mc Nicholl’s.
    The argument is that you should construe the legislation and apply it realistically.
    My learned friend says you don’t do it in two stages.
    My reply is that it doesn’t matter as long as you construe the the statute ‘purposively’.
    And it is clear that that is what the Majority did do.
    So there is nothing in my learned friend’s point.
    My learned friend next said that they not distinguish Dextra (para 236).
    My Lord, Dextra: this is the report in the Tax cases, and they wait until the cases have gone the distance.
    In para 148, where the Special Commissioners’ case starts, it was only the deductibility issue that went to the House of Lords.
    The taxability issue went no further than the Special Commissioners.
    The case concerned a series of companies, a mobile phone business owned by two companies, and concerns the taxability of EBTs for wives, mothers, other named family members.
    ( here Mr Thornhill read from the case.)
    My Lord, ours is a very similar case. The Commissioners set out the legislative provisions, then decide that Section 43(1) did not apply, but that view was overturned in the House of Lords, and nothing turns on it in the present case.
    HMRC’s alternative was that the allocation of funds into Trust was a benefit in kind, and contends that since it is a ‘motivator’ it has to be a benefit, and says that the Trustee was not expected to do anything other than pay.
    Mr Thornhill contended that Bennet’s view would result in double taxation, and the Commissioners were not convinced by Bennet’s ‘double taxation’.
    The Commissioners said that the other point had to be decided on the facts, of how the Company motivated their employees, and of the ‘phantom shares’ option.
    (Here Mr Thornhill continued reading until 10.30 a.m.
    Then he said
    So, your Lordship can see that Mr Brennan was making similar points as in the Sempra case and in this case., putting money into a ‘cash-box’ from which the employee could draw at will
    My learned friend does not contend the Dextra case was wrongly decided, because the facts are stronger.
    On the other hand, the two brothers controlled the company and had power to remove the Trustees.
    The parallel in this case is Sir David Murray. The question your Lordship has to address is not to make a minute comparison-the issue is one of principle: Can it be said that money has been placed at the ‘unreserved disposal’ of the employees?
    The way the Majority approached it was hold 9in paras 231 and 232) that the loans were made genuinely in exercise of of discretion with real prospect of recovery. That is the fundamental point. To the Commissioners the loans were repayable, in Dextra.
    Your Lordship will see that the term ‘cypher’ originates in Dextra. And we can see what the Commissioners had in mind in para 161: “….only if the Trustee is inevitably compelled to comply with the wishes of ..”
    In our case, all the trustees have done is lend money, and it is found as a fact that they are true debts, repayable, and that there is no expectation of other than a loan, and that if and when further transactions occurred this was only with the agreement of trustee, Protector and other beneficiaries. (Para 227)
    So, in my submission, although the facts may be different in this case, the Majority applied the principle.,and did not err in law.
    The next supposed error in law that my learned friend claims is that the Majority were unaware or disregarded the fact that ‘unreserved disposal’ is NOT a prerequisite in ALL cases.
    I say that the Tribunal was aware, because they refer to the case of Heaton and Bell, and there it was the Chairman who brought up Heaton and Bell and asked the parties to consider its relevance.(para 205 shows it was part of the reasoning of of the Majority.)
    And your Lordship will recall that if an employee can choose to revert to receiving cash, and give up the benefit, it turns into an emolument or earnings.
    My Lord, Heaton and bell is referred to three times, at paras 127, 139 and 205.
    So I say the proposition of my learned friend is ill-founded.
    Possibly, however, the real burden of his complaint is that the Majority did not address two of my learned friend’s arguments. If that were the case, it would be error, and he would be within his rights to seek remittal. These two arguments were- an argument in relation to ‘ underlying tacit agreements’, and an argument in relation to ‘directed payments’.
    Is my learned friend correct that these arguments were not addressed?
    My reply is: as far as the ‘underlying tacit agreement’, in para 224, the Majority find “we consider the employees benefiting did not obtain an absolute legal entitlement to the monies..” They also find in para 231 “loans were discretionary”, and then in 232 “we are unable to make further Findings -in-fact in support of there being an orchestrated scheme….”
    All those conclusions, my Lord, run completely counter to the ‘underlying tacit agreement’ argument. I refer to paras 181,182,183. The whole point and thrust of my learned friend’s submission was that there was an underlying agreement that the funds would become the property of the employees. The three paragraphs quoted are inconsistent with there being any such agreement.
    The second argument, ‘directed payment’ is in my learned friend’s submission in para 214 . But perhaps it is sufficient to say that it depended principally on ‘choice’. And the thrust was that even if an employee chose the remuneration trust method of payment he would always have the alternative of cash payment. And that argument is dealt with in para 205 as regards executives, and 207, 208 in regard to footballers.
    My lord, in para 205 in relation to executive bonuses, your Lordship has seen this several times, “line 24 “…. while the views of the individual employee would be canvassed..” They do go on to say ‘… he never had an enforceable claim to bonus.’. But that doesn’t really matter as long as choice was exercised before any payment was made.
    So, the majority says that even if there was a choice, it disappears once a particular way of payment has been agreed. There was never a choice to go back to pay-roll and receive cash.
    As far as footballers were concerned, the majority dealt with them in para 207, the critical words being in line 6 to 9, ‘This [the net figure]could be maximised via the trust mechanism, and moreover could only be afforded by the club that way. A ‘deal’ would be offered by the club only on a ‘take it or leave it basis’
    There has been some argument about these words.
    Our submission is that as far as the club was concerned, it became a ‘take it or leave it’ deal. The footballer had no right to say ‘I don’t want that deal, I’ll have the cash”
    The reason why is the economic reason in the preceding paragraph. It takes up the whole point that it enables the club to recruit football players whom the club could not otherwise afford.
    But if there was a ‘take it or leave it’ situation it would strike at my learned friend’s case. If your Lordship would turn to my learned friend’s submission para 215, it was in that para that my friend used the words ‘take it or leave it’…
    [ Lord D: where?]
    ( whisper from Mr T to Mr Thornhill)
    I have been advised by my learned friend the expression came from the chairman. Para 215,.my Lord.
    It would not be surprising if the Majority had these words in their minds when they made the findings in 207.
    In other words, once you had decided that payment was to be through the trust, you had no choice to go back to pay-roll.
    And if an alternative way of paying could have been made, it could not have been for the same sum.
    Your Lordship can see in para 16 ..
    ( Mr T asks MR Thornhill to read the whole of para 215.)
    [ Lord D: I have read it….. I struggle a little to see what you are saying about what the tribunal are accepting?]
    That once a deal had been accepted , say, for £100 salary and £100 in trust, once that deal…
    [Lord D: but we’re not talking about deal being made, only offered..]
    Yes, my Lord. But once the MG negotiations had been completed about some to payment, some to trust, he couldn’t say no, I’ve changed my mind. The die was cast, once the split had been agreed.
    [ Lord D: that’s a rather different point from para 207, which is talking about offers, not deals]

    Yes, my Lord. Deals were offered and turned into agreements, and the die was cast. You can see in the negotiations that different amounts are discussed, but once crystallised it was offered on a ‘take it or leave it’ basis, until re-negotiation.
    So on that basis my learned friend’s argument has been taken into account. And further, if the new directed payment argument is to be used, the Heaton Bell case applies…. since ..footballers had on the one hand salary, and on the other, payment through EBT.
    I hope that does justice to my learned friend.

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  38. JimmyBeeJay


    Hi John,
    I do not know how you done all this work, but it is superb! Many thanks, I must admit a lot of this I do not understand, but you have given all of us here a chance to try and to learn along the way!

    View Comment
  39. upthehoops


    A belated thanks to John Clarke from myself, for the incredibly detailed updates provided this past fortnight. I just wish I could buy you a glass of your favourite tipple to show my appreciation. Perhaps TSFM may think of organising a ‘mixie’ some time in the future where we would all have the opportunity to chat and enjoy a drink together.

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  40. John Clark


    This, I think, is the rest of Thursday’s proceedings. The immediately preceding line is at the last line of my post on &th at 10.12 p.m above ‘ I hope that does justice to my learned friend’

    “The next point of law related to the suggestion that Sempra was not properly applied.The fact is that the Appeal against it had started and carries on. Did it..
    [Lord D: the question must turn on whether Sempra was correctly applied]
    Yes, my Lord.
    The next point, that the Maj erred in having regard to Section 160 of the Income tax Act.(year?) or 173 of the I.T.E.P.A ( the provision dealing with loans).
    My answer is that it was not an error in law. On the contrary, if there is one principle,it is that one must look at the benefit code as a whole.This is the basis of Ramsay.
    The Tribunal is perfectly entitled to ask what are those sections dealing with loans DOING and the obvious conclusion is that a loan is not itself emoluments or earnings.
    So the perfectly fair question here is are we dealing with loans. And they must be entirely right to ask the question.
    If my Lord would like, I can refer him to Wilberforce, but without reading it out. It’s in P 323…
    It is not without some significance, too, in the Aberdeen decision. Lord Drummond-Young’s observation the same approach is evident (p 25): “ ..two fundamental principles are urged……context…”
    So that statement entitles the Majority to look at the whole charging provisions on earnings and benefits in employment and see how things lie.
    And there is a real issue, if one goes to the Minority opinion of Dr Poon, because at 181 one finds two rather fascinating paragraphs, 181 and 182. 181 reads as follows “ Toulson LJ’s comments in Mayes…..( reads it)
    In para 182, there is a quite remarkable assertion, that you divide loans into ‘soft’ and ‘hard’. That is the result of looking at the results of Income Tax Acts in separate compartments.
    What Dr Poon calls ‘hard loans’, commercial, fall under the charging provisions ..( I lost him here, I’m afraid, for a minute or two)..
    The proper approach is that adopted by the Majority. The legislation on loans is dealing with ‘soft’ loans not on commercial. What is it that turns ‘loans’ into ‘earnings’: when the employee has the right to have the money put at his ‘unreserved disposal’.
    What Dr Poon has done is completely unworkable. There is no authority for distinction between ‘hard’ and ‘soft’ loans.
    My Lord, it might be helpful in this context torefer to Section 64 of ITEPA
    [Lod D: section 63, 64] (looks for it.)
    Could I hand up a copy, my Lord?
    [Lord D: Ah, I do have it]
    Now, the effect of the provision is perfectly clear. You have to have a situation where the same benefit has to have…..What is provided is that amount A is taxed on earnings,any amount in excess is charged under the benefit code. What this section does not do is support Dr Poon’s argument in 181, 182. This Section 64 is a machinery section, doesn’t say you have to to look first of all at earnings charge without regard to benefit charge.

    I turn next to ‘termination payments’, error in law number 15: if it is an error, my Lord, it only affects termination payments, nothing else. Frequently the £30,000 exemption was paid directly to the employee and frequently anything over was paid through the trust mechanism. There is some evidence from Mr – on this point when he said that they did not have compromise agreements, but just did it this way.
    The Majority, at para 209,accepted an argument that if a payment was made through the trust it was not to ‘ the order of’ or ‘on behalf of’ a footballer unless it was a payment in lieu of
    salary entitlement.
    On that basis the Majority concluded that the termination payments that went through the trust were genuine termination payments and not testimonials or payments like those in the Shilton case.
    I think it is fair to say that some work has to be done to identify which cases fall into which category, so the Majority decision lies in the air, waiting to be applied to particulars cases.
    However in the middle case it appears that the Majority, having accepted the ‘to the order of’ argument, concluded that there was not in fact a tax charge.
    My learned friend says that they did not address his arguments.
    That is because they accepted Mr -‘s statement that these things just happened, there was no ‘tacit agreement’.
    [Lord D: was there evidence of a ‘no compromise’ agreement?
    It’s not clear what Mr -‘s evidence means]
    My learned friend suggested that it would be along the lines of ‘we will pay you £100, how do you want it?’ ‘Don’t pay me, pay someone else’.
    In the evidence of Mr-, (day 14,21/4/11) it seems to me…(I missed the next words)
    …. and the question of compromise argument was raised by Dr Poon
    “..we don’t really have any, we may have some…. cancellation of registration”
    It is a little sparse, I think we have to say. Were there any compromise agreements at all? And what did they provide?
    If the compromise agreement provided simply that there would be a payment through the trust, then there would not be a liability because the payment would not have been made to the order of the player.
    My learned friend may well say it was on the MG to produce the evidence.
    But we say, if any payment was going through the side-letters, there was no evidence.
    It is not entirely clear whether the Majoritythink they actually reached a final conclusion in para 209.
    And it is significant that at 233 they say the assessments fall to be reduced and record that certain should stand and we should allow the appeal in principle.
    My learned friend’s side appealed, and undoubtedly there are issues still to be decided, because they were never finished off.
    The primary submission of the MG is that on termination payments would have been made through the Trust without prior entitlement, so no tax charge.
    Decidedly messy, my Lord, and best left there.
    The next point on error of law, relates to the Scottish provident case. My learned friend said that the First Tier needed to establish what the ‘composite transaction’ was.
    First, my Lord, that question is a question of Fact. I refer you to the case of Furness and Dawson. The decision is one which has not been overruled but has been heavily criticised. This does not affect Lord Brightman’s speech: he is dealing with formulation of the new approach. His Lordship begins to consider the Ramsay approach, then concentrates on identifying the transaction. “ Two findings of fact: … was there a..?
    and was it without commercial…?
    these are facts that cannot be set aside at Appeal. Only the legal inference.
    And appellant cannot substitute his own ‘facts “ etc etc
    ( and Mr Thornhill read the opinion at length)
    Pausing there, maybe Lord Brightman’s formulation is too narrow. But what he is saying is that it is a question of fact as to what the ‘composite transaction’ is. And in this case, the Tribunal ( para 103) did find a fact, or one can say they did so in para 231. That is, the tribunal…
    [ Lord D: They seem to think that the composite transaction ended with payment of the loan to the Trust]
    I’m grateful for your Lordship’s intervention.
    In my learned friend’s view the composite transaction the scheme was simple: payment went into the Trust, then into sub-trust, where the money could be dealt with in any way whatsoever.
    What the Majority have done (as a finding of Fact) is conclude that it went into the subtrust into investment or loaned. The loan was a loan.Para 232(3). These are all findings of Fact, they identify ‘composite transaction’.
    My friend has got to run the Edwards-Baistrow attack if he thinks differently.
    And I go back, that the attack should be right at the centre of my learned friend’s submission, not minor…
    I am not sure that my learned friend has included liability to repay in his attack, on the last three lines of 231, which are utterly critical to the identification of the ‘ composite transaction’.So, although there is nothing in the error of law, in looking at the (supposed??) error in law, we come across an important finding which is not, in fact under attack.
    And, my lord, back when my learned friend started (with the Scottish Provident and SPI) the House of Lords accepted that even if there were a small amountof risk of repayment it could be in effect be disregarded.
    True it was, that footballers were willing to accept the risk that they would have no money,that the whole scheme would work as planned. (my gloss: in relation to repayment provisions).
    The difficulty is that the Majority has identified the ‘composite transaction’ as ending with the payment to the Trust, the argument collapses.
    And if my learned friend wants to assert that the scheme was understood to lead to ‘unreservedly at disposal’ payment they have to establish that that was a factor.
    He could resort to the Brander process, which could not succeed because he would have to rely on ‘controversial’ facts, whereas Brander says it can only be evidence accepted by both sides.

    The next point of error goes back to Sempra.
    He says the Majority failed to address the fact that the tribunal in that case failed to address the Scottish Provident case.
    But there is no doubt that the Tribunal in Sempra quote the Scot. Prov. Case.
    (We find at para 138,the Commissioners first refer to Barclay mercantile and Scot. Provident.)
    So, that, in my respectful position is a good summary And then the Commissioners say ……..element of uncertainty..” This is purely derived from Scot. Prov. And the Tribunal applied the principle, although 141,142 there is nothing in particular relating to Scot Prov, except in 143.
    So, they were saying there was no element in the loan reflecting Scot. Prov.
    While they don’t actually address Scot. Prov, we can only conclude that they didn’t see anything in Scot. Prov. as to the element of uncertainty applying in this case.
    Tribunal did (231) refer to Scot. Prov. observations about ‘remote contingency’.
    There was a real liability to repay. The risk was not an artificial uncertainty.

    The next error: that Tribunal failed to consider whether side-letters were part of the contract of employment . In 103(xii) one finds “ in the case of certain footballers….two documents”
    They clearly accept that the side-letters were contactually effected documents. There was not any dispute that the side-letters weren’t contracted (para 120 line 7).
    It’s a non-issue.

    The next alleged error, concerns the SFA/SPL rules.
    My learned friend’s complaint is that the Majority failed to consider whether failure to lodge was in contravention of rules.
    This, my Lord, is not an error of law, because the only question is what was the true analysis of the side letters. Although there were good reasons,my learned friend would say the reason they were not disclosed is the sinister one…
    ( Mr T interjects: what good reasons for not submitting them?)
    Let it be said the side-letters were not submitted, but that is irrelevant. The question is what is the analysis. Look at para 68. Mr- did deal with the question of registration. ( para 68 is read)
    So, there was the evidence given on the part of Rangers.
    Turn to para 31.
    I’ll leave the side-letters there. Their submission to the SFA is not relevant.
    There were two more points of error, my Lord.
    My learned friend considers that the Majority restricted itself too narrowly.
    But it cannot be right to say that they took no attention at all to all my learned friend’s points.
    So what he must be saying is that their process of thought is not clear.
    Your Lordship will recall the London Clubs case, where HMRC argued that they must have taken the wrong approach. The Court said that would be wrong.
    One can’t sort of point to a miasma of facts and say there’s been a wrong approach.
    In any event, they dealt with all his arguments; one does see that ine one way or another factual findings are made which knock out my learned friend’s arguments, be it ‘tacit understandings’, ‘entitlement’,or whatever.
    My lord, also bound up in his submission is the proposition that the Majority should have made findings in ALL the points.
    But over and over, the Authorities have made it clear that it is not necessary to find on every fact. It is illegitimate to look at other jurisdictions and incorporate their principles into this area of jurisdiction.
    I accept that the losing party may wish to establish facts. He is not without remedy. He can ask the Tribunal, he can ask for the case to be remitted, or use Brander procedures (although only in ‘uncontroversial’ evidence).
    Other complaints were that the Majority did not take account of how the scheme was operated. But there was plenty, in relation especially to Mrs C.
    Finally, there is complaint about the operation not being looked at. But what was the nature of the rights of the scheme, what it produced, and how it operated WERE covered.
    The most that could be said of Mr-‘s behaviour was that he had something to hide.
    But what came out were the relevant documents.
    And that is that.And finally, my learned friend picked on ‘relevant’ matter which the Majority took into account: a) evidence of one of friend’s witnesses, where that evidence refers to his view that the loans were a sham (para 88).
    My Lord, it must be clear that the FTT majority did not place any reliance on that, merely recording what what the witness put in his statement. And, of course, the Tribunal was fully aware of my learned friend’s concession that he was not relying on ‘sham’.
    b) my learned friend picked on HMRC’s refusal to commit themselves (para 230) on the question of whether there would be a debt on the death of the recipient.
    In fact the majority went on to hold that there was a liability, recoverable and represented debt in the employee’s estate.
    Therefore it is difficult to see why HMRC would quibble, and it cannot have played any part in the Tribunal decision.
    Overall, therefore, none of these were errors in law, and even they were, they would have no effect on the conclusion.

    This, my Lord, brings me to the Edwards-Baistrow challenges made by my learned friend.
    There are two which are crucial
    -employee expectations
    -lack of complete orchestration
    I would agree that if he could overturn them he would be well on his way to succeed.
    Equally, there are startling omissions. What about the finding of fact about “we do not regard it as a remote contingency“? Not attacked at all , and no attack on ‘estate liability’
    The various challenges made are:
    executives having a choice. You will already have my submission that even if an executive had a choice between bonus in cash or payment into Trust, it would be quite immaterial if that choice arose before he had become presently entitled to the bonus.
    The relevance of this challenge is called in doubt. In any event there is a clear finding that the executive have had an entitlement to a cash bonus. (If they had one, and then asked for Trust, it was too late.) Line 38 of 205- no continuing entitlement which would attract Heaton-Bell. My learned friend said there was contradictory evidence. The Majority noted this. Mr -‘s view was not held by the other executives. Perhaps all were approached in different ways.
    At the end of the day it doesn’t matter. This is a will-o’-the-wisp, proves nothing. I leave that there.

    The second challenge was on the ‘take-it-or-leave-it’ statement. It’s clear there were lots of negotiations when footballers are negotiating their contracts.
    If I might, I’ll give you the number of paragraphs which refer to these negotiations; 32, 33,38,49,51,52,65,72.
    On any sensible approach to the Majority, it couldn’t mean Tribunal did not consider the negotiations.
    The MG submission is that the words ‘ take-it-or-leave-it…’ have to be taken closely with the preceding sentence.
    If a deal was offered which included a payment through the Trust mechanism, a payment was made on ‘take it or leave it’, it was because the club could not afford to gross up and pay tax.
    Once a deal had been struck involving payment through the Trust mechanism there was no going back to any other basis. In other words, my Lord, once a player had gone for a deal through the Trust he had no continuingchoice to revert to an alternative.
    And that possibility of changing back may have had some relevance to my learned friend’s argument on ‘directed payment’.
    At the end of the day, the question your Lordship may ask, even if my learned friend was right, in any event what does it prove? The Georgiou decision and the 4-stage process if the Fact is to be challenged it must be a fact which has a bearing on the issue. And it has not.
    A third challenge is on the evidence of Mr-.
    The majority did not make a finding as such. It was obvious they took a dim view of his behaviour. But my learned friend tok exception ( para 10) to the ‘adversarial conduct’. Line 17 of para 84 mentions the extended period of HMRC enquiry and mention of Police. Maybe that?
    But supposing the Majority had decided that they could not rely on Mr-‘s credibility. They did not have to rely on his evidence. There are clear findings that they accepted the evidence of Mr-. Mr-., and no mention of Mr – at all. (para 205)
    Likewise, in relation to the executives, they relied on Mr- ( a different person. )and the other executives, not Mr-.
    Of course, it doesn’t follow that because Mr- pursued a private vendetta and colluded with Mrs Crimson that he did not know about the scheme. But it does not mean that the Tribunal relied on him or what he had to say.
    In short, there was a wide range of evidence from footballers, agents, MG executives, all of which they relied on as a basis for their conclusion. Lack of Mr-‘s credibility is an irrelevant issue.
    The tribunal did not hear what Mr – said after the evidence of the brown envelope.
    [ Lord D: he could have been re-called?]

    The fourth Edwards-Baistrow point: this is the criticism of the finding in the case of Mrs Crimson that she was merely a lax Trustee.
    The word ‘lax’ is used in more than one place- para 86, 225 line 19.
    My Lord, clearly the Majority were concerned about Mrs Crimson, and those concerns are recorded in some detail in paras 44-47 of their decision, para 86 and briefly at 225. And perhaps the one thing that particularly concerned them was her and Trident’s willingness to allow the Trust to make substantial substantial, unsecured loans to both executives and footballers.
    By contrast, one can see what my learned friend wanted to establish, in para 151. What emerged from Mrs Crimson’s evidence was that Trident was no more than a ‘cypher’.
    Your Lordship knows that ‘cypher’ comes from Dextra, repeated in Sempra. What does it mean in the context of Trusteeship? It could be a person who adds nothing and simply acts as directed.
    What particularly concerns HMRC is that she was apparently ready to act on the instructions of the MG. But it’s not her willingness to act on the MG’s instructions but on those of the employees. The question after all is :were the funds put at the ‘unreserved disposal’ of the employees.
    Even if Mrs C was willing to act on the instructions of the employee, why did tht lead to the conclusion that the funds were at the unreserved disposal of the employee?
    My Lord, most of the employees were footballers, and while it may be cruel to say ‘here today, gone tomorrow’ there are frequent transfers, and it might be asked what interest the MG had in looking after a footballer or his family in relation to a particular sub-trust?
    What is more important is whether MRS C was the handmaiden of the employee. Was she in that position?
    And the answer is ,no. Would she have just released cash? (paras 231,232) That would be impossible, unless you take away the ‘recoverability’ and ‘debt’ aspects.And no attack has been made on those two conclusions.
    One can add the fact that Mrs C was questioned (your Lordship has seen this already: 1/11/2010, p.72 line 15 and 16,p. 84, line 19 to p.85, and on p 95, line 22, 25, p 91 line 7-18, 100 line 20-25), all those passages deal with protecting beneficiaries and refusing to renew loans if it looked as if it might be difficult to recover.
    And after this she confessed to being aware of being capable of being sued for breach of Trust. My learned friend says, ah, but she had a marvellous indemnity. Perhaps it’s time to show your Lordship the indemnity.
    Page 7 my Lord, is part of the of the main MG Management Ltd Remuneration Trust.
    ( Mr Thornhill reads, and reads, about the Trustee not being liable for anything done unless bad faith is proved)
    And reads from the Armitage case in the Court of Appeal..
    (What one is looking for, my Lord, is the statement of principle -a Trustee is indemnified , except in cases of actual fraud)
    more reading followed to make his point.. Then,

    I should also draw your Lordship’s attention to 243.
    So where does this get us in relation to Mrs Crimson? Suppose it were the cas3e that she deliberately made loans regardless of the ability of the borrower to repay, and did so to a person who was not a beneficiary of the sub-trust, the question one would have to ask is :would she be acting in a way that meant that the protection of the exemption clause would not be available. If she did not care, that might be reckless, dishonest. If she had said ‘it doesn’t matter, I’ve got an indemnity clause, that would be reckless and dishonest.
    In this particular case, there may be an extra twist. Clause 6(1). There does seem to be a distinct dichotomy there in that if the trustee is acting personally, negligence is not brought in, whereas if acting as an agent it does. If Mrs C was acting as cavalierly as is said she was, there must be at least a distinct possibility that she was acting dishonestly, and given the size of the loans, absence of indemnity would not have been attractive.
    Mrs C said she was concerned, and would have to take action to protect herself.
    As regards Clause 6(2) does indemnity cover the things, they are covered by the indemnity if negligence is involved.
    What we have hereis Mrs C conscious that she was a Trustee. She was found as a fact that she was acting on her discretionary powers as a trustee, she and her benficiaries are making loans, she does not have the protection of indemnity? The Majority criticise her conduct, but they did hold the Trusts were Trusts, to say that Mrs C was a cypher to do anything the employee wanted is not the right conclusion.
    The only proper conclusion is that the employee had the funds at his unreserved disposal.

    I pass on to the next challenge. This is to the finding that Equity took a firm stance (Para 86).
    ‘Trident was prepared to be more compliant’. Para 225,’ Trident’s attitude differed’. “ reaction of Equity.. seeking a form of loan security..”
    My lord, we can short-circuit by saying the following: If your Lordship is with me as regards Mrs Crimson, whatever might be said about Equity can hardly be worse than what is said of Mrs C, because they came to the view of the need to to seek security. Whether that means a ‘firm stance’ cannot be decided. They should get credit for taking a proper view because their lawyers advised, not because they were forced to by Jersey authorities. According to Mr -s’ ( gloss: the liar) memorandum “ Equity mentioned they ….. legal advice” ( There was a long reading of this)
    It does seem, my Lord, that it was the lawyers who said a question had been raised, and Equity get some credit for acting responsibly.
    Of course, my Lord, finally, whatever one says about particular trust management by a particular Trustee, the Majority took a longer view to the effect that whatever the deficiencies of one or other Trustee (p.225) another Trustee might revert. HMRC is saying that the Trust will always have lax Trustees.
    That is wholly unreasonable. So, on that issue, the Edwards-Baistrow case is no where near made out.
    On the 6th challenge ( UEFA), I don’t propose to address your Lordship. The majority decided that the Famagusta story was correct. But it does not matter, for the bonuses had not been earned until after the game.
    The next challenge is on the findings that the employees’ expectations were to no more than a loan. This goes to the very heart. But if one goes to the HMRC skeleton, at 30.9, not much is said about it. He’s got a finding against him on the powers of the ‘protector” What the Majority concluded on Protectors is at 224, which is part of the finding being attacked.
    Would your Lordship want to see those submissions? My learned friend has not put forward any submission.
    [Lord D: the question of the Protector’s powers is a question of law]

    What the Majority say is not an Edward-Baistrow fact, but a question of law.[ Lord D: Mr thomson will have topersuade us that the tribunal’s view of the law vis-vis Protectors is wrong]
    So far, there’s no real evidence that that is what protectors did do……. the foreign players remodelling of things required consent. How can my learned friend demonstrate that? If he cannot, he cannot attack on on the point of employees’ expectations.
    It is a very heavy onus that my learned friend must discharge. Unsupported assertions of what he thinks parties might do are not enough.

    I pass on to to the next attack: that there was merely a ‘degree’ of orchestration. He says this finding is so vague as to be meaningless, no Tribunal could come to that conclusion.
    The critical point is that the Majority could not find that there was “ an orchestrated scheme” (p.232)
    It’s not a question ‘you tell us how much orchestration there was’, but we don’t accept there was orchestration such as…..
    The onus is on my learned friend to set out how the evidence shows there was ‘orchestration’. He has not done it in the skeleton, nor before your Lordship. When is he going to do it?
    Not only must my learned friend set out the evidence that leads inexorably to the conclusion..
    he does not contend that there’s evidence in the other direction.
    That evidence was set out in the MG submission where the MG deal with the termination arrangements, variety of approaches…
    This would have to be dealt with if there was going to be an Edwards-Baistrow attack.
    My lord, I don’t propose to take you through that in detail, because I’m not making the Edwards-Baistrow application. My learned friend is.

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  41. John Clark


    I will try to continue tomorrow, which ought to begin with Friday morning’s proceedings ,some important bits of which have already been reported by my fellow-TSFM reporters. Mr Thornhill finishing at about 12. 30 or so, and Mr T of HMRC began reply.

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  42. ianagain

    ianagain


    Again WOW JC.

    I’m going to go and re read about a weeks worth reading of previous decisions to get close to understanding where this ones headed, and I presume more to come?

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  43. jean7brodie

    jean7brodie


    Thanks again John Clarke. I am eternally grateful to you for doing all of the reporting. You will get your rewards in Heaven 😀

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  44. John Clark


    Friday’s proceedings at UTTT , which takes Mr Thornhill to the end of his allotted time. He finished at about 12.30.
    “UTTT hearing, continued. Friday 7th March 2014.

    Mr Thornhill QC for the Murray Group picked up from where he left off on Thursday afternoon.

    Yesterday, my Lord, I was going through the Edwards-Baistrow points. There are two remaining points.
    The first concerns Mr-, the player who on sequestration had not declared the loan he had received. Of course the bare facts are accepted, and the Majority did accept the fact and put little weight on it.( my note: in 228 the Majority said ‘we are unaware as to the nature of any professional advice which he then received, and we are not prepared to speculate as to his understanding of the legal technicalities of the trust/loan arrangements’.)
    One can hardly let it be a determining factor in the major issues. The Majority did not ignore it but considered it.This and the other point WAS taken into account, not disregarded.
    My Lord, the we come to the last point, which is the observation on the part of the Majority that loans were almost invariably granted. The challenge is that they were not invariably granted (para 103) ‘ in (almost) all of these cases loans for the full amount…were granted’. NOT invariably.
    Mr – ( this was a player whose name we were definitely told not to disclose!) never took a loan from his Trust fund and probably that’s what the majority are referring to there. The word ‘invariably’ comes later at para 231, line 17 ‘..almost invariably granted’
    Where loans were SOUGHT, they were always granted.
    [ Lord D: the language is infelicitous: it’s common ground that where an application was made, it was granted]
    [Mr Thomson: probably true. My learned friend is conceding that it was true.]
    Mr Thornhill: I concede that if someone applied they got the loan.

    That does deal with the Edwards-Baistrow points, my Lord. Some points were run together, although technically different ( Equity, and ‘orchestration’), so I think all the points have been covered.
    Before I leave Edwards-Baistrow as a subject, may I refer to Appendix A of the MG skeleton? The second paragraph of the excerpt from lord Justice Evans in ‘Georgiou’. This set out the proper procedure for an Edwards-Baistrow challenge:
    – findings
    second, to show the relation to the conclusion
    identify the evidence
    and show that a Tribunal arrived at the wrong decision
    An Edwards-Baistrow challenge is to be seriously undertaken.
    Many of my learned friend’s challenges are NOT significant to the conclusion.
    The third step involves setting out the relevant evidence. That entails a marshalling of the evidence and then the fourth step to show the finding was one the tribunal was not entitled to make. In my submission, when it comes to the serious matter of orchestration, expectation, that process hasn’t begun to be carried out properly. And has not been carried out on many key factual findings.
    Instead, my learned friend has selected a rag-bag of findings, most of which are not relevant, and with the others he has simply said are wrong. Exactly what he is not entitled to do.
    One final point on the Ed-Baistrow, in para 17 of their submission HMRC has identified a number of factual points which he appears to be challenging on the grounds that Tribunal failed to take account of [them], but these were not included in Para 16 of the Ed-Baistrow challenge.
    I now come to the remaining, residual points which the Majority identified in 211. Fortunately some common ground.
    My learned friend made it clear that the assessments in the cases in 211 were sought to be upheld on some ‘exceptional’ basis. So that the decision in principle in the main appeal will govern those case.
    In that light, we look at the reference to SDM in the second sentence “ in view of his active control…he seemed able to decide his own bonus”.
    The critical question is this: did SDM decide that he was to be ENTITLED to a bonus and did a time arrive WHEN he was entitled to it.
    If he decided after that time, too late: taxability would have arisen.
    Was that the state of affairs, or was it that before he ever became presently entitled he decided that it would go through the Trust mechanism?In that case, the money was not at his unreserved disposal. That is the question that has to be decided, and you have to look at the evidence.
    These matters have to be decided if possible by THIS Tribunal. If not, remit would be the proper course.
    However, looking at the evidence in the transcript ,139 (19) , this is the cross-examination of SDM
    “ Who is it who decides…”
    ( and Mr Thornhill reads from the transcript)

    And in a further passage ,148 line 16 , Mr Mure, chairman of the Tribunal starts the questioning,
    ( and Mr Thornhill reads some more)Then,
    My Lord, with some directors the matter wasn’t pursued right through, the passage establishes that the decision on how bonus would be paid, was in advance of the amount-to-be-paid decision.
    If that is correct, on the MG submission SDM was not taxable because he was never in the possession of an enforceable right to bonus. It was ‘.IF I get a bonus, use the Trust.’
    The next issue is the question of the Trusts for SDM’s sons and their ‘competence’, in para 180.
    ( and the same point in Mr -‘anonymous Liar’s’ sub-trust). Because these were not in the class of entitled beneficiaries these were exceptional.Tribunal concluded that the loan arrangement in itself might preclude a consequent liability.
    I take them to mean: if the funds put into these was notvalidly put in because the trusts were not competent, then the source of the funds could only have been the Principal trust, so the money came out of the main Trust fund. That doesn’t alter the question of principle: were the monies ‘unreservedly at the disposal’ of the sons or of Mr (Liar), or were they simply loans?
    Then comes Mr – [Liar]: the third of the exceptional cases.
    The exceptional circumstance is the fact that he expected some reward ( line 20, 21)and payments were made into his sub-trust. These were payments in recognition of the expectations, as to which MG say: so what?If footballers have their expectations met through the Trust, what does it matter in Mr Liar’s case?
    I take you, my Lord, to the passage to which the Majority refer. Why was this a special situation?
    ( some apologies, wrong reference. A hunt for the reference..)
    I do apologise, my Lord, I think I gave you a red herring.. My simple submission is, if Mr Liar had these payments made through the Trust, then the matter falls to be resolved in the MG way.
    ( Mr Thornhill referred to para 3( 7) of some evidence on 7th November relating to section 401 of ITEPA ( income tax earnings and pensions Act).
    -‘Payments on termination but as a reward for services is taxable as income.’ I was submitting that it was not a termination payment, but payment for work. And the Majority misunderstood it.Simple mistake. ( And Mr Liar is not in fact taxable under the MG argument)
    A further technical point: the assessment in respect of Mr Liar is made on MG Holdings. But Mr Liar stated which companies he was employed by, and none of those companies were “Holdings”, so technically the assessment was made on the wrong company. As to what Mr Liar said showed showed he was not employed in “Holdings”,
    the witness statements which I think your Lordship has in a separate bundle? 25?
    In para 5 a statement of Mr Liar “ I became …….. of ( such and such a company)” “ I joined the Board of Rangers as non executive director..”
    That was the totality of the positions he held in the Group. Some questions were asked about his position. I will ask you, my Lord, to look at Vol 1 of the transcripts for 5/11/10. The passage starts at page 19(4). Now, this is the cross-examination of Mr Liar by my learned friend.
    [Lord D: have I seen these papers before?]
    No, my Lord.
    There is a mention of ( the company name not to be mentioned in case it identifies Mr Liar), and other involvements. “ I was asked by SDM to become a non- exec..”.
    Then, perhaps, I could just refer to bottom of page 22:
    ” Are you saying you would not be provided with any remuneration?
    Yes”
    “So you didn’t have any responsibility until you joined ( not-to-be-named company) and Rangers?”
    ( there was no contract of employment with [ nameles company]

    Nothing gives any notion that Mr liar was ever an employee of “Holdings”.
    Our stance is that the wrong company has received the investment.
    [Lord D: it matters not to either side..]
    But this is a matter left open for decision, perhaps needing further evidence.
    Putting it simply, it must be able to be established whether Mr Liar was employed by “Holdings” or not.If not clear, then some further evidence will need to be established.
    [Lord D: Mr Thomson’s point is that the onus is on you]
    We accept that, my Lord, but the onus in Edwards_baistrow will shift to my learned friend.Let him produce the evidence, and we can sort out by agreement, or by remitting.
    But we submit, evidence has been given which throws the onus on HMRC.
    My Lord, that deals, I hope, with Paragraph 211.
    In conclusion, my Lord, I will propose to put three points on matters of law:
    Smyth and Streatham: this underlines the re-formulated ‘directed payment’ argument of HMRC.
    The point in this case is that it is fruitless for HMRC to rely on THAT case, given Mayes findings in fact. Para 205 is conclusive in the case of executives- they never had an enforceable claim.. If one never had an enforceable claim to bonus, then there is no way you can be said to agree to apply it in a particular way.
    As far as the footballers are concerned, any…… of the decisions is ruled out by para 207, where the Majority accepted the evidence of of SDM, Mr- and Mr -, which was [ that] there were two quite separate compartments to the arrangement- salary part and remuneration trust part.
    On that basis, it cannot be said that a salary was being applied by having a payment made through the RT, because it was simply salary agreed and NOTHING else.
    It might be useful to buttress those observations by other paras besides 207 ( para 66 of Mr [nameless])
    And para 33, dealing with Mr[ other nameless] evidence “the concluding offer was in two elements”.
    Which was the evidence which was accepted. In my submission, it is not really possible to re-write the contract.
    The second point: turns on a legal decision in Gordon, important because it points clearly to the restricted nature of the charge of tax on emoluments ( Para 10)
    But there is a refernce (para 15) to HMRC’s stance before this Court.
    Lord Hodge said that HMRC had to submit that the day earnings were made ……
    [ Lord D: That is not what is being submitted here]
    In this case, first of all payments go into EBT, then sub-trust, then lent. Later, payments come absolutely to beneficiary or loan could be released
    [Lord D: What do you mean by ‘release of loan?]
    Section 188 of ITEPA…
    [Lord D: I’m still not sure what you mean.]
    ‘Release’ means ‘discharging the loan.’ The broad point is the possibility of taxability to
    the employee when earnings
    when the loan is paid
    to employer
    charged to tax on employee either when loan is discharged
    My learned friend would say if this is right that there is a tax charge on the money going into the sub-trust when it is loanedout because the tax payer HAS the money, that’s the end of the matter.: a loan of his own money.
    But suppose HMRC was to say although you had been assessed for tax,on loan or earnings,
    [ Lord D: Surely the character…..]
    In Ford and McHugh, Lord A’s point is that there was a charge on both occasions. This shows the difficulty my friend has, trying to turn .
    [Lord D: That would have been in Aberdeen?]
    Then:
    [Lord D: Pab Holdings Ltd has not been referred to by either party? 2012 Tax Cases 582]
    (Blank looks)
    Adjourned for coffee break.
    After coffee ( 50p out of the machine! Colombia), Tribunal resumed.
    My Lord, I have refreshed my memory on PA Holdings. Not a useful case, because there is no dispute about whether cash was received. The issue was the source. Ours is quite different, no dispute about the source being employment. The finding was that the Trustees and Director had acted without regard to fiduciary responsibilities. The whole approach to what was happening, and the approach to Ramsay. I should have read it before.
    The next point, my Lord. In Appendices A and B of skeleton there were set out relevant passages on jurisdiction. My learned friend raises Jones and the FTT. With the suggestion that the jurisdiction of this Tribunal is wider than questions of law.
    But ‘Eclipse’ case appears to establish that in the context of tax appeals, the Jones case does not apply. ( This is a warning shot if my learned friend tries to rely on Jones)
    An important question: that of ‘grossing up’.
    The MG submission is in App J at p.67. We stand by that submission.
    My learned friend says that the onus is on the MG… Some statutes, but they don’t apply here. In para 16 of the skeleton, reference to 697 of ITEPA ‘ payment is a payment after deduction of income tax.’
    No one has paid any tax yet , so these do not apply.
    So, it comes down to having to look at the terms of the relevant arrangements to see what the employee was entitled to. And this is where the dispute is very narrow. Because my learned friend says if you had an arrangement where £100 net was coming from the RT, that means net of income tax, you have to gross up to find the gross sums.
    The MG say in reply, that is treating ‘net’ as after the deduction of income tax. That expression comes over and over again. But it means NOT after the deduction of income tax, it simply means that that sum is not liable to tax.It’s a promise to provide £100 not a promise to provide a sum which, after tax, comes to £100.
    The surrounding circumstances show that must have been what the parties contended- that Rangers could only afford to pay through the RT. They were not committed to paying gross, but only £100. Put another way, promising to pay £100 on the basis that there is no tax is just a promise to pay £100.
    That deals with the footballers. In the case of the executives, the situation is slightly different but essentially the same. If an executive was to get £100 through the RT, the true comparison is with £100 gross paid through the pay-roll with tax deducted. If an executive said ‘ I don’t want £100 through the Remuneration Trust, the evidence is that he would have got £100 less tax.
    What governs the matter is what the parties agreed, not some artificially grossed-up sum.
    One final matter: the fact that in some cases football players asked for and received indemnities. This is said to be of relevance to the grossing up question.
    In fact, no. “ RFC will be responsible for any liability for Uk taxation for ny amount……..” (Bundle 9, statement 76), but this doe not mention amount of tax, or gross, or net.
    If RFC did pay tax, that might trigger a limited grossing up, but unless and until that happens, it doesn’t apply.
    Next question is is on disposal IF this appeal is allowed.
    The proper course is that unless your Lordship can re-make a decision is to remit with clear directions to the First Tier tribunal. If my learned friend opposes that, he has to meet a high threshold, which we say has not been met.
    239 Sinclair – Temperley: In this discussion, at para 45, sets out a number of relevant considerations.It may be helpful to emphasise 46.4 “… totally flawed.”
    (and Mr Thornhill reads)

    The second authority is the Ranke case ( 287 in my volume of Authorities)
    Justice Norrey “ I remit….. differently constituted …”
    specialist tribunal etc .
    Third authority McBride v Employment Appeals tribunal: ( decision of the Emp.Appeal Tribunal on appeal to the Inner House of the Court of Session)
    at para 34: the EAT had remitted to the same tribunal. Should it have been to a differently constituted tribunal? NO. ( need to consider the needs of case-management, the cost and time involved in hearing evidence from the beginning..)
    perhaps if there was bias in the original tribunal or collusion. But the professionalism of Tribunals can be relied upon “
    My Lord, many of the relevant factors arise here. 17 days of evidence If remitted to a differently constituted tribunal, a great deal of the evidence would have to be revisited. This is a major factor in remitting back to the same Tribunal.
    A second factor is surely that the members[of the original tribunal] set out their differences in intense discussion and consideration. The members were anxious to arrive at the right answer.
    My learned friend has wanted to paint the decision as a flawed one. But one of the main features is that the tribunal did not have regard to his submissions. But I can say it is perfectly clear that they did.(para 232).
    So here was a tribunal clearly aware of the law, dealt with my learned friend’s points, if there was an error in law it was arrived at honestly by experts in the law.
    Para 49 [ my gloss: of the skeleton, I think] there is a severe criticism by my learned friend that we do not accept that the tone of the Majority’s responses lends no trust that the original Tribunal would be fair.
    We dissociate ourselves from such a suggestion. Para 235 expresses their thanks to my learned friend for his great assistance.
    In my submission the threshold isn’t reached, but IF it is, the case has to go back to the original Tribunal.
    It would be unfair on your Lordship to have to go through the transcripts, without seeing any witnesses.
    If there is error, it must be remitted to the First Tier. But we say there is not an error of law. The Majority grasped the scheme was not overly complicated, grasped the legal issues, made important findings in fact which led to their conclusions
    and that can only be undone if HMRC can undo those facts.
    The onus placed on an attacker of findings is a heavy one, and needs to be discharged with care and due attention.
    And in my submission my learned friend has NOT attacked several.
    I invite dismissal of the appeal.
    _______-
    And here ended Mrt Thornhill’s case, at about 12.30.
    Mr Thomson began his rebuttal.
    But that can wait.

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  45. blu


    Remarkable again John, thank you.

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  46. John Clark


    Continuation of proceedings at the Upper Tier Tax Tribunal, Friday 7th March 2014.

    Counsel for HMRC, Mr Roderick Thomson QC began his reply at about 12.30 pm or perhaps a shade earlier.

    [ I should remark that Mr Thomson’s style of presentation was very different from Mr Thornhill’s. It was, it seemed to me, more fragmented, more condensed -in bullet form, rather than continuous narrative. My account, therefore, although as nearly ‘verbatim’ as I could manage, requires some speculation here and there as to make out what I thought he was saying. I’ll try to separate that speculation from the words I attribute to him.]

    “ My Lord, my learned friend has raised issues which I had not anticipated. But I have prepared written answers, to pass up. ( He passed up some document to his Lordship, with an apologetic comment about the text not having been proof-read to any extent).
    What I’ll do is simply deal with today’s points first, and then turn to the document.
    First, reference to part 17 of the grounds of appeal ( my complaint that the Majority had not had regard to my submissions) because they would need to be on Edwards-Baistrow.
    Large tranches of evidence being ignored, e.g, internal records of the Group.
    These are not Edwards-Baistrow points and don’t NEED to be.
    Second, next point relates to SDM’s evidence of how bonus he got should be treated, one of the key issues (which tribunal failed to look at?), a flavour is given by SDM, your Lordship appreciates that the agreement was that what was agreed WAS a bonus payment. That is an issue that was not addressed, bonus, bonus, bonus.
    These are part of the issues not addressed BECAUSE of the view that the Tribunal took of the law. They did not the ‘composite transaction’ as being the payment.
    In relation to Mr [Liar], the onus is on the MG and they failed to discharge it. Why was documentary evidence, if required, not produced earlier. The acceptance, reliance on SDM [ and two other directors, and Mister Liar] evidence that the undertakings with players were separate contracts, was part of their decision for not lodging with SFA/SPL, if the tribunal accepted the same,one has to question the reliance on the key features of..
    There was never a concession that it was one contract.
    And on the Ford-McHugh: double taxation point point by Mr Thornhill, technical point: would the loan be the same benefit, it ‘would be wouldn’t be’.
    ( Mr Thomson apologised for losing his train of thought for a moment)
    [Lord D: ( solicitously) do you want to move on?]
    I will my, my Lord. In relation to ‘Eclipse’ and ‘Jones’, I am not making any point on that at the moment. Not seeking to rely on them at the moment.
    [ lord D: they only become relevant if you are asking me to consider evidence]
    The reference to ‘net’ in the documentation is a reference to ‘ no liability to tax’ but I saw no evidence to that effect. On the contrary, all of the evidence is that it was all against the player wanting to ACHIEVE a ‘net’ position. There is a lot of evidence in connection with side-letters that these were ‘net’ figures …….. ( not grossed up)
    If MG make decisions decisions without documenting them, the MG bear the onus.
    The ‘indemnities’ are evidence of ‘net’.
    In the matter of disposal, if there were to be a remit to the First Tier as existing, directions would need to include full and wide-ranging findings of fact.
    In the McBride case, the circumstances are very different. But I accept the test.
    As to the time the majority took, it is only speculation about the time the Majority actually spent ( ? on actually considering the evidence?? as opposed to getting round to producing their decision??)
    I appreciate the polite references (?to my submissions??) by the Tribunal , but the proof doesn’t come from kind words, but from the case.
    On the ‘tone’ of the Majority’s decision, my point was that my arguments were considered to be irrelevant, because of the view they took of the law. There is frequent use of inverted commas on my phrases, shown up by the fact that the phrases in inverted commas were used by witnesses…
    My points were NOT subject to decision at all. Paras 223, 225, 231, and 232, are where ‘unreserved disposal’ is treated as ‘absolute title’ and everything I say does not matter.
    Turning to the document I have just handed to your Lordship,
    Aberdeen Assets: the ‘protector’
    The Majority did not consider the vast amount of evidence that there WAS ‘absolute legal title’
    non-centrality of ‘absolute title’ ( ?? in the view of the Majority???)
    No attempt to view the ‘unity’.
    In relation to Para 147 I was arguing that in PRACTICAL terms the loans would never be called back.
    The Trustees understood understood their role. Mr – thought employees were told that the Trustees always granted payments.
    These are NOT matters that I have to satisfy on the Edwards-Baistrow basis. Aberdeen Assets shows my learned friend is not correct.
    [Lord D: Do you have time to do complete statement?]
    If your Lordship wishes to adjourn for lunch now)

    Adjourned for lunch.

    After lunch, Mr T continued on the ‘double taxation’ point.

    If we go back to section 64 of ITEPA, to clarify: the hurdle is not a hurdle because inevitably the thing that one starts with is important the ‘complete transaction’ If it is on earnings basis the loan is in itself is not a benefit. And so in Section 64 because the loan is not a benefit it doesn’t come into play: so the section stops at 62.

    My Lord, will I withdraw the document I submitted? I will address the court on the thrust of the Document?
    [ Mr Thornhill: My Lord, I’m conscious of time. (And I think it was here that Mr Thornhill made it clear that in his view, Mr T might run out of time in his oral reply) or I can reply (in writing, he meant) to the document.
    [Lord D: Mr Thornhill ought to get some time to reply in writing. 7 days?] ( This was noted)
    Mr T for HMRC continued:
    On the scope of the Appeal, my learned friend cannot be right. If the Majority took the view that the case turned on one factor alone, then in the MG submission that every other aspect of evidence held to be irrelevant would have to be (???) ( I lost the point here, I’m afraid)
    It can only be the case where there has been an error if law ( where evidence has not been considered) it MUST be considered, and the P…. ? case, and London Clubs case are NOT relevant to to the present case. Because I say there is an error in law which led the majority to NOT consider a whole lot of evidence, or the WEIGHT of evidence.
    On any fair reading, it’s not ‘weight’ but ‘irrrelevance’ they argue (and they say so).Now, remit back , (ref Rule 34) my friend agrees. But Rule 34 is not applicable. What we have is a First Tier decision, 28 days to appeal, and there is nothing in the rules to suggest that I have the possibility of asking ( the Tribunal) for further findings of fact. In any event, even if so, it would have been inappropriate for me to ask.
    Georgiou, Brander are all cases where there are no ‘ex facie’ errors of law, so they are not useful.
    The Letham-Grange case: ‘once an error in law has been established which affects the way evidence ( has been handled???), it is for the Court ..
    If the tribunal had no obligation to make fidings of fact on HMRC material, I suggest it ony underlines the proposition that encumbering the paries to to prove every point on Edwards-Baistrow grounds is Unjust. It is wrong to suggest the door is closed to anything other than Edwards-Baistrow proof.
    The ‘directed payment’ argument is not different, as my learned friend suggests.
    The argument was there and NOT considered. There was a reference to ‘Ramsay-plus’ as being a description of my argument and that was all. And Heaton-Bell illustrates the point because my argument was on the Primary ground, and the Majority does not address that ground in Heaton- Bell.
    Even if, my lord, it were to be concluded that the tribunal had considered, the decision does not give any clear idea of why they made the decision they made. (And that’s my secondary position, if the Court was somehow persuaded by my learned friend).
    And the difference between the Minority’s study of the evidence calls into question how, if the decision had been made on that evidence, the M ajority arrived at their decision.
    The ‘convertibility’ argument; my learned friend made reference to Heaton but no attention was given to the primary ground.: namely one looks at the nature of the agreement and if it is ‘earnings’, that’s it.
    My learned friend argued that ‘salary’ and ‘bonus’ are separate. Both of these are merely ASSERTIONS and need a proper examination of facts and evidence, which was not carried out- because the Majority was diverted on ‘ unreserved disposal’.
    And the example of the £50,000 to me and £20,000 to the mother. This depends on the agreement. My learned friend is wrong to make that assumption: in reality it is £75,000 salary, as per Heaton and Bell. And because it is ‘directed payment’ there does NOT need to be ‘unreserved disposal, or ANY disposal.
    Now in Sempra it does appear that the Special Commissioners erred in law in looking at ‘purposive’. BRENNAN case recorded that the employees were entitled to remuneration and chose the trust
    It may be that the Commissioners fell into the same error because of the same arguments of my learned friend.
    “Emoluments” do not have a narrow meaning. None of the authorities support the view of ‘narrow meaning’, in the matters we are dealing with.
    In relation to Garforth: my learned friend had question in (?2 and B??) on ‘fetter’ in the context of payments into the directors’ account of company, meaning that legal pressures were barriers to ‘unreserved disposal’.
    I say, the issue of fetter is not something separate from ‘unreserved disposal’. The ‘fetter’ is not something separate: it is part of whether there is a fetter.
    The point of the ‘fetter being disregarded’ is where the ‘fetter’ is commercially real as well as legally. And therefore my learned friend’s point is unfounded.
    Loan legislation and benefit code: and what my learned friend said about design. HMRC is entitled to take the view that it is ‘composite transaction’, and NOT obliged to take the same view where facts are different.
    My learned friend asserted there was no error because the Majority read the legislation as a whole.
    The criticism was thatthat the majority was influenced by the existence of .loan legislation.Did not apply to general charging. My learned friend was wrong when he talked of Dr Poons’s ‘soft’ and ‘hard’ loans.
    But she said that ‘composite transaction’ applied where the loan is not a ‘soft’ loan ( ??which is NOT from the loan’s conception.??)
    There is nothing inmy friend’s criticism of Dr Poon’s statement, and in any case the discussion is not (meaningful).
    Turning to UBS, the essence of his point is illustrated by his reference to ‘salary sacrifice’, when there is a consensual change to take less salary and something else instead.
    I have no problem with my friend’s proposition. The problem is whether the agreement is of that nature, or simply an arrangement to pay salary by different means.I suggest that this is the very issue that the Majority failed to to acknowledge or consider.
    Contrary to what my learned friend said, the submissions of HMRc were not considered. My Lord, 207 is nothing more than the OBSERVATION made by the employees. That is what that is about. There is NO HINT of anything beyond that.
    And in the reference to Heaton-Bell the majority are not addressing the right bit of Heaton and Bell, and do not have an argument in mind.
    Relevance of Mr Liar’s dishonesty: my learned friend says that his dishonesty, the concealment of side-letters, is of no relevance.
    In my view, the Majority HAD to decide what the true nature of these agreements was, who go to extraordinary length to conceal the truth for 5 years. It plainly did matter for a Tribunal.They could not address themselves to the issue without addressingthese issues properly.
    And there is no evidence of Mr Liar’s pursuing a private vendetta- he was the MG’s representative.
    The difference between ‘sham’ and ‘cypher’.
    My learned friend did not distinguish properly.He addresses himself to the question of ‘sham’ only, where the Trustee consciously knows that something is other than ‘trust’. He contrasts that with what the Majority found. They stopped it there ‘ because it was not a sham’ “ these were effective trusts”. Yes the ‘loans’ are ‘real’. But the Majority does not address the issue of ‘Cypher’, or the likelihood of repayment against the wishes of the employees. “Mrs crimson was going through the motions of exercising discretion.” they say. So she was!And the Majority did not discuss the question.
    In relation to Dextra and ‘absolute disposal’: the word ‘absolute’ arises from Brennan… they concluded there was no ‘fetter’. And they immedaitely cite Ramsay and follow it. Which is what the Majority should have done.
    Analysis of the Majority’s decision: My learned friend did not address the ‘ ratio ‘of the decision, and did not acknowledge that the Majority related only to ‘unreserved disposal’ and ‘absolute entitlement’. I took your Lordship systematically through.
    My learned friend broadened the usage of the words used by the Majority to cover the gap. The majority were only addressing the ‘validity’. One cannot pluck out odd phrases.

    In my submission the central plank on which they decided this case (despite 147 listing of my points this doesn’t mean they dealt with them) was ‘unreserved disposal’, which they equated with ‘absolute title’.
    So, when my learned friend say the Majority considered Mrs Crimson as ‘sloppy’,it is because it did not give ‘absolute title’.( Not sure I understood that point, I have to say. I may have missed a sentence or two)
    My learned friend says the Majority did look to see whether there was something ‘more’. Wel, where are these findings of fact?Dr Poon did not imagine those facts. And in the Sempra case the Commissioners made lots of findings in fact. Our Majority did not.
    My learned friend used para 103 to cover the gap, by imbuing certain phrases. It cannot be right that he should point to a word in an uncontested fact to answer a question in contested facts. And other examples.
    Aberdeen Asset case: It is plain that the Majority were not seeking to make any distinction, they made no findings of fact to allow them, and it’s plain they went to the decision ( para 224, where the majority refer to Aberdeen Management and Garforth) They must be referring to to the Upper decision, not the First tier decision.They were therefore relying on a decision which had been overturned by the Inner House.

    Mayes: was plainly central for the Majority’s decision.It doesn’t matter whether a) or b)-both show whichever the reference, they were wrong. What is clear is that Mayes was central and my learned friend did not express that.
    It is also true that certain things could not be changed without the ( consent of) the beneficiary. But he could who the beneficiaries were. ( for example, when players moved abroad).
    There is no justification that there ‘commercial reality’ just because there was no ‘sham’.
    In 231, reference to ‘commercially’ has just been dropped in.If the Majority had really considered they would have had to make findings. Their use of the phrase is simply lip-service, or casting their minds back to Garforth they have thought “ Ah, ‘commercial’ -put it in)
    The reference to Astall, ‘not remote contingency’ finding.The Tribunal looked at various things. ‘remote contingency’ is simply a reference to the Scottish provident point, without properly addressing that point but simply on their approach that everything is related to ‘legal validity’ and absenc of ‘sham’. My repeating ‘orchestration’ in their view cannot change the legal ‘validity’.
    And Stropp’s (??) wife: well, any Protector can unmake the beneficiary.
    Wasn’t there an example of the protector changing his wife. No. There is Mrs – in the Minority decision. Mr -(her husband) appointed a new Protector who, he knew, would appoint him beneficiary- his wife!
    He did not have a side-letter until he terminated his employment at Rangers. As part of his termination he gets that sum, goes abroad and is appointed beneficiary.
    And also a daughter as protector., she appointed him a beneficiary.
    So for ‘consent’ just appoint a new protector. This in effect is a key to the ‘cash-box’.
    We don’t have to go that far.

    Termination payments; It was for MG to show that assessments were wrong. In a great many cases,of £30, 000 cash, balance over ( ?through Trust) this has not been addressed by Tribunal.
    The payment is ‘on behalf of’ or ‘to the order of” . I don’t accept my learned friend’s ‘Bill of Change’ parallel.
    If RFC insist on operating without documentation. There was supposed to be evidence of ‘compromise agreements’. Not one such was produced.
    Designer: Trust was designed very wide, for a very good reason.
    Composite transaction: I did ‘define’ it for tribunal. THEY needed todecide what it is.
    It is plainly wrong to say that they defined ‘composite transaction’ in paras 103 and 231.
    Scottish prov and Sempra: tribunal do not address themselves to looking at earnings as salary

    ( I have to say that by this time, Mr T was hurrying to get to his last few points in a very abbreviated manner which I could only capture as:
    Edwards_Baistrow : No time to go into, and I don’t need to.
    In relation to Georgiou: I have done what has been required of me.
    The Majority’s comments: if they are findings of fact, they are material to the decision that must be made.
    My challenge on Mr Liar are strongly made
    choice
    Mr-‘s evidence that there WAS a choice , and that that was the generally held view, and SDM’s evidence.
    I have discharged the onus upon me on the Edwards-Baistrow.
    A number of points; Reliance on Mr-‘s evidence-no.
    Indemnities- I have dealt with
    Tribunal leaves all my ‘facts’ up in the air, with no findings.
    Total failure to address the case for HMRC.
    I fully recognise a fresh hearing, or asking your Lordship to make findings, is not palatable,.
    I do have to say that the matter cannot, in my view, be remitted to the original tribunal : it must be either your Lordship, or a freshly constituted Tribunal. The former is open to your Lordship, and is not insuperable.
    I move for the Appeal to be upheld.
    [ Lord D: Mr Thornhill may write a note of any further points. It will of course take me some time to reach a decision. I am grateful to Counsel. ]
    All Stand.
    All stood, and made their obeisance.

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  47. upthehoops


    john clarke says:
    March 10, 2014 at 8:58 pm
    =============================
    Great update of the final part John.

    My layman’s mind increasingly sees this as being returned to a FTT. Yet my layman’s mind sees already wealthy men being given tax free loans with the understanding they would never have to be paid back. I guess this will give me something to follow when I retire (bit to go yet!) as it makes it way through the House of Lords!!!

    My love for a conspiracy theory makes we wonder whether if say, Aberdeen, or Celtic were in the dock things would be different. Guess I’ll just have to wonder!

    Off to work now, have a good and safe day everyone.

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  48. Finloch


    The final afternoon of the UTT appeal was quite bizarre to someone like me who has not spent much time in such an environment.

    A simple non-imposing room with more empty seats than seats taken.
    A restrained mostly suited atmosphere where politeness and deference was almost overbearing.
    A strange world where normal human eye contact was noticeably absent with most people looking down at their shoes.
    A well practised and accepted ritual where there seemed to be a strange detachedness affecting all – except for a smart casually dressed person furiously scribbling away in the back row like a first year student in an economics lecture.
    Someone who was accompanied by others dressed like him.
    – People obviously not normally part of this strange world.

    This may have been the end of this round of a high stakes contest but you’d never have guessed.
    In reality it was an uneven contest between a skilled orator and a plodder who seemed to be seeking to achieve victory by 1000 minor points with no knockout blow. (Like when the Romanians shut up shop in the first minute and tried to win the European Cup on Penalties)
    All in all it was so boring to some of the suited players that the Murray Lawyer was doing more interesting stuff like playing with the calculator on his phone and even Thornhill’s no 2 was foot tapping away in a wee world of his own for a while.

    Now and then interesting expressions raised the interest of observers like

    “it is patently the case the arguments were not considered”
    “Not putting reasoning into a straitjacket”
    “The loan in itself is not a benefit”
    “The reality of unreserved disposal”
    “Why did the Murray Group go to such lengths to conceal the side letters?”
    “Mea culpa 5 times – that is how they (The Majority) decided the case”.

    I have left it a few days but I remain unreservedly saddened by the fact that justice up to now seems to be about who is best in the semantics caused by the imprecision of the English language rather than what is right and fair.

    I remain disturbed and becoming angry by the absolute lack of interest by our mainstream media (especially the BBC).
    A quite disgraceful stance by a publicly funded organisation when there are millions of Tax £s at stake.

    But I do remain hopeful that Lord Doherty will find a way out of this current “Wisdom of Solomon” moment that came his way.
    He will know it is easiest for him to close ranks and deny the appeal as this will side him with his learned colleagues.
    But he will also know it is in nobody’s interest for the law to be corralled by silver tongued silks like Thornhill who really don’t need to care about what is right or wrong – its just business for them.

    And fundamentally he knows HMRC will not go away and if he doesn’t call it right it now – or at least set it in the right direction, it will just make him look stupid in the medium term.

    I’m not Lord D but this decision seems to me to be bigger than a wee room in George Street with some twisted logic and an orator versus a soporific speaker.

    Finally it was good to meet some of the rabble that is TSFM.
    JC – whatever happens you are Man of the Match.

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  49. Massive support from Clumpany Towers, which I know will be echoed everywhere. https://t.co/DYGVxqksu1

    "The words Jackson chose to write today could be potentially damaging to a very small charity like ours"

    https://t.co/9EAQs8CBNt

    50 Years Ago Today: Jinky sees red as poor run continues 23rd September 1967: Celtic v St Johnstone – League https://t.co/IUAcIl73XI

    In hide and seek terms, they have some way to go to beat your lack of comment on BTC outcome & whether there should be an independent review https://t.co/s5SPou4MFD

    Please share folks, especially with those who still don't get it.

    https://t.co/yLFe1ncPfQ

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