DCSIMG

Tom English: ‘There is no reason in the FTT findings to warrant the shutting down of the SPL’s commission’

Two wrongs dont make a right: Rangers fans justifiable anger at prejudgment of the tax case does not justify their calls for the SPL commission to be ended. Photograph: Robert Perry

Two wrongs dont make a right: Rangers fans justifiable anger at prejudgment of the tax case does not justify their calls for the SPL commission to be ended. Photograph: Robert Perry

  • by TOM ENGLISH
 

IF THE events of the last week have taught us anything about what happens when sport meets law it is that the rest of us should stand well back and let them at it rather than trying to read their minds and make assumptions of innocence or guilt.

IF THE events of the last week have taught us anything about what happens when sport meets law it is that the rest of us should stand well back and let them at it rather than trying to read their minds and make assumptions of innocence or guilt. In the eight-year long clash of Murray Group Holdings and HMRC over the saga of the EBTs, the First-Tier Tribunal sat for seven different sessions, pored over the evidence of many witnesses and then debated how this evidence sat with the minutiae of four separate taxation laws, six different pieces of Trust Law and 17 different pieces of case law from Garforth versus Newsmith Stainless Ltd (1979) to Autoclenz versus Belcher (2011).

The final report is 145 pages long and such was the head-wrecking complexity of the affair that the three-person panel still could not reach a unanimous view, the verdict going with Rangers on a score of 2-1. Eighty five pages are given over to the one dissenting voice, Dr Heidi Poon, who appears incredulous at the assessment of her fellow panel members, Kenneth Mure and Scott Rae. The idea that this was always going to be a cut-and-dried case, as trumpeted for the 20 months of the existence of the rangerstaxcase blog, was proven to be nonsense.

But the blog doesn’t stand alone in prejudging the findings of the FTT. There was a perception across all of the media that Rangers were going to be found guilty on a giant scale, but they weren’t.

The report talks about five cases – all former players – and “certain other limited instances” where Rangers were deemed not to have paid tax and national insurance. The scale of the wrongdoing was deemed minor by the majority of the panel, not the epic cheating that had been predicted.

So, caution is advised when trying to forecast the outcome of such things. That is one of the big lessons of the Big Tax Case that turned out to be the Not So Big Tax Case. History, though, is threatening to repeat itself. When the FTT published its findings there was a rush, on the Rangers side, to interpret the result as complete exoneration and, by extension, a mandate for calling for the cessation of the SPL’s commission looking into the area of dual contracts and whether or not Rangers failed to register players properly for close to a (trophy-laden) decade.

Alastair Johnston, the former Rangers chairman, called on Lord Nimmo Smith, right, head of the commission, to shut it down. So has Ally McCoist. And others. There is another bout of prejudgment going on now and this time it is being done by the people who railed against the prejudgment of before.

There is no reason within the FTT findings to warrant the shutting down of the SPL’s commission, given that it will be looking into different areas of this saga.

It is legitimate to speculate that the FTT report is good news for Rangers as the story moves forward into January, when the commission will sit.

It’s fair enough to say that the threat of heavy sanctions – title-stripping even – has now been reduced. But, again, that is making assumptions about the inner workings of the commission.

This is a body that contains some of the sharpest legal brains in the land. Nimmo Smith, pictured, is a former judge in the Court of Session and High Court and a Privy Councillor. The second member of the commission is Charles Flint QC, one of the most respected experts in sports law in all of Britain. The third member is Nicholas Stewart QC, a deputy High Court judge in England for more than 20 years.

The actions of the SFA and the SPL during the summer, when they attempted to cut a plea bargain with Rangers on the presumption of their total guilt in the EBT case, was an affront to justice and has rightly infuriated the fans of the club. But this commission is above reproach. It has to do its job. Bringing an abrupt end to their work now would make no sense, not while there are still so many unanswered questions surrounding side letters and payments and how it all sits with the SFA rulebook.

Amid their triumph, something was lost on some Rangers people. The cases of Mr Selby, Mr Barrow, Mr Furness, Mr Doncaster and Mr Inverness (who was signed in 2004 with the help of his Spanish agent) – all pseudonyms for un-named Rangers players benefiting from EBTs – demand exploration. Even Andrew Thornhill, the QC representing the Murray Group at the FTT, accepted that these five former Rangers players were given guarantees of bonuses via their EBTs rather than the proven discretionary loans that put all the other cases in the clear.

Said the report: “…Mr Thornhill noted five cases where peculiarly trust payments were made in respect of guaranteed bonuses…The Appellants (Murray Group Holdings) concede that, in these cases, there is a sufficient nexus with a contractual right to create tax liability.”

Or, in other words, their EBTs were not applied correctly and tax is due on them. It is now up to the commission to figure out if these payments should have been declared to the SFA. You might think it’s a no-brainer that they should have been but, when lawyers start analysing contracts and rulebooks, then all bets are off.

This is why the commission needs to plough on. It has work to do. It has cases to look at and it has a judgment to reach. Attempting to second-guess that judgment has already got people into trouble in this saga so there is no point in repeating the process now.

Unless you know all the evidence they have at their disposal and can peer into the brains of Nimmo Smith, Flint and Stewart and figure out what they’re thinking then predictions of innocence or guilt are nothing but gossip. There’s been too much loose talk in this tale already.

 

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