I write to explain a point of law that has occupied much of my twitter feed for the last couple of days. It may help to say that I am a Queen’s Counsel specialising in tax law. And I have no commercial or personal connection to Rangers (I use that name in a vernaculous rather than a legal sense) or its successor entities or (as far as I am aware) anyone connected with the club or those entities.
I have said that it is not accurate to describe Rangers’ use of EBTs as “illegal” or “unlawful”. And here is why.
You might think about the purpose of tax law as being to draw lines in the sand: fall on one side of the line and your liability will be (lower) x; fall on the other side and it will be (higher) y. Rangers entered into certain transactions which they hoped and (I understand) expected would attract liability x but which the Supreme Court decided attracted liability y. It is not “illegal” or “unlawful” to attract a higher liability than you want. And nor is it illegal or unlawful to transact to try and attract liability x but to fail and, nevertheless, to attract liability y.
We self-assess our liability to tax. Putting it another way, HMRC ask us questions in a self-assessment form, we answer them, and those answers have as their consequence that we owe a particular sum in tax. We also promise HMRC that we believe the answers are right.
If we give HMRC answers that lead to the conclusion that we owe x in tax and a court later says that our answers were wrong and we owe y in tax that does not establish, on its own, that we have behaved unlawfully or illegally. It is not unlawful or illegal to make an honest mistake.
If, in completing the self-assessment form, we gave answers that we did not believe to be right, we would have behaved unlawfully or illegally. But I am not aware of any evidence that Rangers gave answers in its self-assessment form that it did not believe to be right. And nor, so far as I am aware, is this an allegation that HMRC has advanced.
What about a situation where Rangers gave misleading answers to HMRC outside the self-assessment form? Certainly it would be very poor behaviour. And I can imagine circumstances in which this might be unlawful. But, on its own, this fact – if fact it is – does not enable the conclusion to be drawn that Rangers has broken any law.