Hidden Contract, Disguised Remuneration

Written by TJ

We previously called the SFA’s failure to examine this issue properly an open, festering wound on the game.  This may well divide opinion, but today I’m not going to write on the eligibility of players, campaigns for title-stripping or whether there was a ‘sporting advantage’ gained. In a gambit of questionable folly and audience alienation, I decided to take on the boring subject of responsible tax planning and morality. I’ve noticed that punters, press and pros alike all don’t really seem to get it. Many shy away from talking about it as it is complicated. Many more speak about it ignorantly with the vigour of righteousness.

Your writer today is the same Falkirk fan that wrote yesterday’s piece.  He has also spent most of his last two decades working in the world of international tax planning structures and 15 of that working in an ‘offshore’ environment. Still there will be those that shoot the messenger rather than the message I’m sure.  Today all I aim for is to make the issues and their ramifications more accessible to the public and to understand why we feel the way we do about the situation in Scottish football. I’ll try and make this as pain-free as an article on tax strucuturing can be.

Background (entry level – feel free to skip)

First off – the difference between tax evasion and tax avoidance.  I’ve seen them used interchangeably, wrongly and concurrently.  They are different things and the difference is important.  Tax avoidance is the lawful structuring of tax affairs so as to minimise the tax burden on the entity or individual – i.e. legitimately minimising liabilities.  It is arguably immoral (Jimmy Carr, Amazon etc) but it is inarguably legal by its very definition.  Tax evasion is the illegal evasion of taxes that would otherwise be due.  It is by definition illegal.  Tax loopholes in a jurisdiction are often exploited by fine upstanding accountants like myself (okay I deserve whatever stick I get for that) to legally minimise tax liabilities.  Cross the border into ‘illegal’ territory and you are a party to tax evasion.  There is a greyish area between them.  Sensible tax planning avoids the grey area.  Aggressive tax planning goes ‘gung-ho’ into it and to hell with the risks.  You charge in knowing that what you are doing might be illegal and no mistakes about it.

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Relevant to this discussion is the two known ‘disguised remuneration’ schemes used by Rangers.  The first was the Discounted Option Scheme (DOS) – which led to the ‘wee tax case’ – and the second the Employee Benefit Trust Scheme (EBT) which led to the ‘big tax case’. As of today it is actually not that important to a discussion on legality how they operate (as they were both determined to be disguised remuneration on which tax should have been deducted) and I’m sure most readers will have at least a vague notion.  It is important to the issue of morality though so I’ll briefly explain.

The DOS

Instead of paying money as wages and deducting tax/NI, the employer puts the cash it would have otherwise spend on wages into a company that’s effectively a ‘money-box’. The employer holds nearly all the shares and the employee very few (say 99:1).  The taxable benefit if this were all is very small to the employee since they have very few shares.  But on top of this there are options available to all the shareholders to acquire, say, 1000 new shares for every share they currently hold for a nominal price.  This doesn’t affect the taxable benefit if all were above board, since both hold options of value equivalent to their shareholding. No matter how many shares are in issue, the company is only worth the amount the employer paid over in the first place.  However if the employer agrees not to exercise their option but the employee does, they all of a sudden become virtually 100% owners of the cash but are only received a taxable benefit on 1% of it. Unsurprisingly as a sham arrangement, these were quickly deemed to be disguised remuneration that should have had tax deducted up front.

In the context of Rangers the DOS scheme ran between 1999 and 2003, closing when it became very clear the scheme would not achieve the tax savings being pursued and would only cost more in interest and penalties in the long run.  To be fair to Rangers at the time it was started these schemes were in the ‘dark grey’ part of the border between legal and illegal.  But the part that you’d be fairly certain was over the line if there was a pattern of it and it all came to light.  I believe (and I’m writing from memory here so don’t crucify me for any honest mistakes!) that Craig Moore, Tore-Andre Flo and Christian Nerlinger were the three paid this way at Rangers with potentially more Executives within the Murray Group also.

The tax and interest directly from earnings avoided through use of this was not repaid at a time where it could have been with little recourse, ending up with a penalty doubling the overall quantum due, from £1.4m at the date of demand to £2.8m.  This liability forms the crux of the ‘Resolution 12’ campaign by interested parties of a Celtic persuasion, over the timing of the liability and granting of UEFA licences in 2011/12.  Option schemes are not illegal. Abuse of option schemes for the purposes of avoiding tax is. Rangers accepted liability for this in early 2011 (i.e. that it was unlawful disguised remuneration).

The EBT

It worked by money coming into an over-arching trust. I think this might even have been the same trust owning the money-box companies for DOS but its not important enough to the principle for me to want to look into it. In this case ‘sub-trusts’ instead of companies are set up for each employee who is to benefit from them. There is nothing wrong with this and they are extensively used to house shares and share options on behalf of both named and pooled employees totally legally and often not even with the aim of avoiding tax – just effective structuring.  Think about a pool of shares set to one side for future employees as performance related pay for example.  Where the dishonest use of these comes in relates to the nature of a trust more than anything else.  When gifting something to a trust, you grant the asset to the control of the trustee (for an intended purpose) and give up a say on it. When you don’t control something you don’t get taxed on it.  When you do eventually benefit from it; then you do.  So the money comes into Mr X’s sub-trust and the trustee holds it.  They receive a request (which they can choose not to approve) to pay from the funds in it money to Mr X.  Mr X is only taxed on it when he receives it.  Again this can be used perhaps lawfully – normally a pretty grey area, but lots of variations – to defer income until a time when Mr X is not paying tax at 50% for example.  A footballer’s career is short.

Where the line gets really pushed out though is when instead of declaring it a benefit at all when the cash is received, its called a loan.  A loan with no intention of being paid back while Mr X is alive and simply repaid (if any left) from his estate after death.  That is not just paying less tax by deferring; that’s avoiding income tax altogether. It is clearly disguised remuneration where its the clear intention to transfer wealth for services rendered by Mr X.  Proving this is where the grey area normally comes in, but when you’ve got contractual letters detailing the payments it becomes a lot easier.

EBT’s are legal.  Offshore EBT’s are not only legal but actually good business sense since they frequently don’t attract capital gains tax.  At the time Rangers started doing this there was no outright clear legal ruling on the illegality of this kind of remuneration.  To be fair that’s the way with all ‘loopholes’ though.  Its a game of cat-and-mouse where those seeking to exploit them are out front and the tax authorities running behind them closing the doors. The tax framework wouldn’t work if you needed to wait for retrospective closing as people like myself would be forever through the next door before they entered the room.  It is actually the beauty of the new general anti-avoidance approach for anyone interested.

Getting to the point

What is important to this though is that when you’ve clearly crossed the line – whether there is existing rulings in place or not – you know as an advisor that the tax authorities will hold the client accountable for it with no quarter given.  Examples must be made. You manage risk by staying well clear of the grey areas and having massive indemnities on the advice given.  When a client wants to edge closer to the grey its high risk, high reward – but you have a long wait to know if you won or not. In the meantime the client reaps the short term benefits of cash flow.  That is what happened at Rangers.  They took a big risk knowing that there’s a good chance what they were doing was illegal. Murray made it worth his while by remunerating himself well for being the guy willing to throw the dice and they all knew that by the time the grey settled into a clear black/white division, they’d be on one side of it or the other. If they lost they were all in.  It came up black.  Illegal.

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A lot of people bang on about it being ‘legal at the time’ or ‘cleared as no sporting advantage by LNS’.  On the other side of the fence people demand ‘title-stripping’ or ‘retrospective punishment’ and that the players and staff are ‘tax cheats’.  To me though, they are all missing the real crux of this.

Morality and the club

Entering into these arrangements is effectively corporate gambling but where the odds are stacked a little in favour of the player not the house. If you play conservatively you go home with the house’s cut.  If you play aggressive then you’re a mug.  A game of roulette has more to bet on than all you own on red or black.  You don’t need to go all in.  It’s fiscally irresponsible to do that.  It’s morally compromised to do it knowing fine well that there’s about a 50:50 chance what you are doing is illegal and virtually a 100% chance ordinary people would find it repulsive.  The board of a company has responsibilities to its shareholders to manage the risks of their investments – is this what they would want?  How much of a Messiah-complex would you need to have to walk into that sort of gambit thinking you’ll come out smelling of roses?

Morality and the players

Neither the DOS nor the EBT scheme would have worked without the explicit consent of the person being remunerated to be paid this way and an employer willing to gamble everything they’ve got.  The employees take less risk.  They know if they lose (it is illegal) that they’ve stepped into territory that society doesn’t accept.  They know if they win they’ve got away with something borderline illegal.  But all they are really doing in the game is guaranteeing the stake that the employer is gambling.  If the employer loses they are all on the hook.  The employer has told them he’ll cover their share though.  What they don’t know is that the employer has his whole stack on the table already.  Does not knowing that make their choices more moral? Seems to me it just makes their losses bigger.

_45798164_rangers_celebnew_766_05_getSo when we have a go at Eck, Boyd, Cannigia, McCann or any of the others for their participation in the EBT scheme it is not motivated by one-upmanship or bragging rights.  It is an accusation that they knowingly morally compromised themselves for money in a way that turned out to be illegal and would have been reprehensible anyway.  They also have advisers who know all of this as well as I do.  It would have been more moral of them during their contract negotiations to ask for normal payment and if it couldn’t be afforded to a level they were satisfied without potential illegal activity – sign for another club. The sympathy the press gush on this is unfounded and the wilful ignorance of the SFA to it is a blight on the game.

Morality and the SFA

One of the principles of sporting governance is financial fair play.  Regulators have a responsibility to make sure clubs are responsibly run.  The SFA has presided over decades of financial disasters without doing anything meaningful to adjust the course.  Even the UEFA financial fair play rules they seem to see as more of a rule of thumb.  That they were ineffectual in preventing this after a number of warm up events is gross negligence.  That they’ve done nothing about it since needs a whole new phrase.  I’m going with “Aegri Somnia”.  This isn’t the place for a discourse on how we’d like to see the game run differently here, but there’s clear guidance out there that the SFA ignore.

“The Scottish FA is firmly committed to the principles of good governance: we ensure that fairness, transparency, equity and integrity are at the heart of all we do.” – SFA website

The SFA has failed utterly in the commitments it makes to us, the football fans.

My role in this

So what of the advisers and accountants that are involved in this? We aren’t playing the game.  In the routette analogy we are the croupier. We know the houses rules, we help the players understand the rules and the risks and we let them play.  When they win we get bigger tips. If you don’t like gambling, you don’t blame the croupier.

I can tell you that there absolutely are other clubs that use offshore structures to acheive tax advantages.  All that I know do it fairly and within the rules of the game and out the grey areas.  I’ve worked with some and know of plenty more.  Same goes for people in football and their personal wealth.  No problem with any of it so long as its above board. Structuring your affairs to minimise the tax burden within the law is fine.  Hell, in moving offshore I save myself 20% on all my earnings. I don’t owe the UK anything because I don’t earn there any more. I pay all the tax I’m due to where I am.  Money doesn’t have a home jurisdiction.  Its best to reside where it works the best for you.  International tax treaties are being effective in making sure there is fairness in this (google BEPS) but its a path still being walked.

It barely matters whether the tax avoidance plans used were illegal or not.  What matters is the recklessness and moral bankruptcy that allowed all this to happen in the first place.  Sure, that they turned out to be illegal might give legs to an argument for unfair advantages (titles won by breaking the law aren’t very sporting after all) but the regulator fell down on their duties so much that all this was allowed to happen on their watch.  Remember the banking crisis?  When you allow greed, risk taking and financial irresponsibility to go unchecked – and then unpunished when it comes to light – then you’ve really morally compromised sport.  From the board table down to the boot room, isn’t that the very essence of sporting competition that the best-man-wins?

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13 thoughts on “Hidden Contract, Disguised Remuneration

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  1. I remember challenging Keevins on the Clyde phone in in 2012 about the moral aspect. When I raised it you could hear a pin drop as the pundits played pass the hard question parcel. Hugh picked up the parcel and accepted that there was a moral case to be answered (cost to NHS services because less tax gathered etc) but kept quoting that Clyde could not comment because of investigation. Kept repeating Clyde could not risk saying anything prejudicial on air.

    That is where it started and remains still with a panel who are either ebt recipients or good friends of them, replicated by BBC Sportsound.

    Why the Government do not step in and force change at SFA is a mystery. They owe it to the tax payer. They only have to show UEFA/FIFA evidence why it is necessary to do so for FIFA/UEFA to back off or be seen to be part of the morality problem.

    Good to see an article pointing out the complete lack of morality in football, which whilst not confined to Scotland is till our problem to address by all means possible.

    For Info.

    The 3 DOS recipients were Moore, De Boer and Flo. Moore did not have a side letter but the other 2 did. The existence of the side letters allowed HMRC to use PAYE principles to calculate the tax owed.(Non payment of PAYE was the principle that saw the 10 point deduction rule for entering administration.

    https://www.sfm.scot/jpp-perverting-justice/?cid=20727 )

    RFC contested the Moore element as there was no side letter and it was dropped from the sum payable agreed on 21st March 2011 leaving the £2.8m figure. The concealment of those side letters from HMRC in 2005 also allowed HMRC to pursue payment after the normal 6 year limit accusing RFC of negligence or fraud.

    That fraudulent behaviour continued in 2011 in order to obtain a UEFA Licence that would have allowed the £2.8m to be paid (had RFC then qualified) and saved RFC from administration until the next time they failed to qualify for the CL.

    In 2008, with the determinations of the tax owed under the Big Tax case scheme dropping through the letter box in spring of that year, Rangers under Walter Smith and Sir David Murray embarked on a net spend program of £10m instead of making contingency to pay the bills.

    Morality?

    Criminality more like.

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    1. Thanks for the correction Auldheid! I know I could have looked it up but was in a bit of a rush and it didn’t seem fundamental to the point. I don’t intend writing in detail about the SFA failings regarding the Res12 issues as there are many with more inside knowledge than me. If you like to contribute something directly relating to the SFA handling and morality issues in more detail, we’d be happy to provide a forum though.

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  2. The tone in which you have described David Murray’s actions is exactly how Rangers fans would describe them. Arrogant, reckless, etc. You won’t find much disagreement with that. Indeed reading your post as someone with no expertise in tax law, I found it to confirm what my perception of events had been from a common sense perspective, ie EBTs were common practice, but where others proceeded with caution due to the potential grey area, Murray proceeded with reckless abandon. The perception I get from non-Rangers fans is that you see us as somehow being party to all of this, and that we’d do it all again if we could. This is not true. I wonder if it would surprise you to know that Murray is hated amongst the Rangers support, perhaps even more so than Whyte. The disconnect of course lies in what fans say amongst their own and what they say to other tribes. The default will always be to defend at all costs and sling mud in the other direction. The conversations amongst ourselves had post 2012 about Murray have been unanimous: his arrogance nearly killed our club.

    Your article was about the morality of what Murray did and it may be that we are on the same page there, but I do find it hard to give that too much weight. This is probably more to do with being cynical about people than anything else. Are the motivations for not diving into that grey area as Murray did really moral? Or that they look at it and think, ‘avoid that I might get caught’? People will take as much as they can get away with. We have also seen other individuals in Scottish Football make tax related headlines. I appreciate that the important thing will always be the detail in these cases, and I’m not equating them to what Rangers did, I just feel I’ve seen enough to know that many out there will go as close the line as possible. It is that which drives their decision making rather than some innate sense of duty about paying their taxes. Murray was just the one that took too far. So I do find the view that he was this morally bankrupt baddie who ruined the saintly world of Scottish Football for us all a little tedious.
    All that said, I appreciate we can only take the law as the barometer. It would be absurd to refuse to criticise those who have fallen on the wrong side of it, because others may ‘think the same way’. Murray and Rangers as a result had to pay the price for what he did. All of the above is more just about what I feel, and I wouldn’t rely on it too much as an argument.

    When it comes to morality and the players I’ll keep it sweet; I think you’re being harsh. Again maybe you are more optimistic about people than I am but I think if you took any cross section of society the majority would act as they did. For me any ire there should almost exclusively be directed at their advisors. Save anyone with actual knowledge of tax law, who wouldn’t just follow advice?

    So arrogant and reckless? Yes. That is unanimous. Immoral? Probably agree. A lot would. The issue for Rangers fans has never really been about the morality of it. It has always been about the punishment fitting the crime. The rest of this is more my thoughts on the situation as whole, but seemed keen for a Rangers perspective, and to be honest for me it’s rare to find somewhere you can actually have a debate without it descending into illogical chaos! It will also probably help explain why I see the question of morality being relatively unimportant.

    I am one of those people who have said, ‘they weren’t illegal at the time’. (I’m going to take the word ‘illegal’ to mean: the EBTs were deemed taxable. A lot of Rangers don’t see that word as being correct. I’m not sure it matters if we all mean the same thing. If it is correct, then there is something unique about the context which seems important to me which I’ll come back to.) I have yet to hear a good explanation of why that is not a logical thing to say. I understand the nature of tax law and that it must be retrospective. You can’t simply announce that a loophole is closed as of today, you need to be able to recover money. If not, morally questionable individuals and businesses could just move on to the next one unaffected. There would be no deterrence to continually diving head first into the grey area.

    But I don’t see how the unique nature of tax law isn’t entirely relevant to questions of cheating. Tax law allows for the grey areas where other crimes do not. You know you are taking a gamble and that you might fall on the wrong side of the law. But the key part there is might. You also might not. You also are not hiding anything or disputing what you have done. You could never say, ‘I did intentionally kill the guy but it wasn’t murder’, and then have courts and judges disagree and spend a long time figuring out whether you are correct. The argument of cheating would be more persuasive if as soon as HMRC discovered what Rangers were up to all and sundry declared it obviously illegal. That was not the case. It went to the Supreme Court. As I understood it there were dissenting opinions out there in the tax world, right up until the very last moment. It is very hard to equate something like that to cheating in my view.

    The question then might be-how can you get away with spending money on players you might not have otherwise had (I stress the might) simply because you were prepared to act in a more immoral way than others were prepared to?

    The answer to that is: we didn’t get away with it. There seems to be a perception that we did. I find that strange. It was completely ruinous. The gambling terms in which you put it are correct. Murray needlessly put all his chips on red and it came back to bite him. The reason we didn’t ‘get away’ with anything touches on that point about the word ‘illegal’, in a tax context like this. Correct me if I’m wrong but isn’t the remedy in a case like this simply that a bill becomes due? Nobody goes to prison. Nobody faces criminal charges. If you are caught robbing a bank, the money is returned and you go to jail. This isn’t that. They close the loophole. They say ‘what you were doing wasn’t right and now you owe us money’, but there is no implication that you are a criminal and are going to be treated as such? If you pay the bill the next day, is that not simply the end of it? The unpaid tax and more is returned to the public purse and the individual or company takes a financial hit?

    Rangers rolled the dice that a bill would never come. It allowed them to spend money at the time but with the risk that the future could be catastrophic. It was. The strategy didn’t pay off. That doesn’t mean it was ‘cheating’ at the time. You can choose to sprint the first 400m of a marathon-it will likely work against you in the end-but it doesn’t mean you weren’t legitimately winning at the time. I don’t see why other clubs and fans, upon seeing the mess it got us in, didn’t congratulate themselves upon their less risky, more moral path. Instead they shouted, ‘how can they get away with this?’, while at the exact time the thing we had supposedly ‘got away with’ was driving my club to the verge of extinction. We’ve had to listen to commentators talk of 20 in a row for Celtic, of Rangers, who had been at the top of the game for over a century by perfectly honourable means before EBT’s, potentially never catching them again. In the same breath they say we really must punish Rangers some more because people have lost faith in the governing bodies.

    This might not have been what you were looking for, but I hope it is instructive in explaining why you have struggled to get Rangers fans on board, if the basis of SFA reform is, ‘Rangers got away with something’. I hope the following is instructive in that regard too.

    I was at University away from Glasgow when the news broke that Rangers were going into administration. The texts started flying in and phone calls were made to friends back home and further afield. In disbelief we started to make plans to attend Ibrox at the weekend, not knowing if it might be one of our last chances. I enjoyed reading your other post about what football means to you and your experience of Brockville. My experience of supporting Rangers is different but the place my team holds in my heart is the same. It is running down the stairs as a boy to meet my Dad home from the game, asking if he bought me a programme. The smell of print does things to me to this day. It is spending dusk till dawn running about outside with my wee pal from down the road, pretending to be Gazza, Goram, McCoist and Laudrup. It is the sights and smells of my first trip to Ibrox; the awe at climbing the glass staircase and the view from the club deck. It is the love of my Mum who always got me the latest kit that I wanted for birthdays and Christmases. It is the one thing I know I can always talk to my old man about when our relationship might be a bit strained. I was an introverted kid and teenager and Sport gave me everything, a shared love of Rangers was a huge part of that. I don’t mind admitting that I’ve had some periods of depression in my 20s. Sometimes the only thing that would get me out of bed would be when the Rangers games came around. These are the types of thoughts Rangers fans were having in 2012.

    When the assets of the club were bought and transferred to a new company there was a massive amount of relief. Going down to the Third Division was accepted as reasonable punishment for the mess we had got ourselves in. But even as were travelling to places like Brechin and Montrose, the public discussion remained, ‘have Rangers been punished enough?’. Some thought membership in the Third Division was unfair on those further down the football ladder. In essence, they felt it was unfair that my football team was still in existence. They wanted those happy memories to be of a defunct team. The wanted that for thousands of others. Whether it was questioning our league membership or debating other possible sanctions, the opinion of the rest of Scottish Football seemed clear-more must be done.

    At the same time we were fighting our own battle that the rest of the game didn’t care about. It became clear our new custodians were charlatans. The soul of the club was dying. The stadium was neglected. Infrastructure was neglected. Our youth and scouting departments have only just recovered. None of that was the Rangers story played out on back pages, phone-ins and Twitter feeds. It remained, ‘have Rangers been punished enough?’ Tax verdicts seemed to vindicate at times but none of it changed the discussion. Lord Nimmo Smith came and went but we were immediately told that it was a bad decision, and have been told since that it needs revisited.
    In the background we were having our retail department stitched up by Mike Ashley and were very nearly subjected to the same joyless existence as Newcastle fans. When we finally got the club back in the hands of someone who actually cared about it, the rest of Scottish football chimed in to remark, ‘dodgy Dave’ and imply that we were showing typical arrogance by accepting him.

    I’m sure some reading this will be thinking boo-f***ing-hoo. I am not complaining about being a Rangers fan. We are lucky. We have enjoyed success and have already bounced back to the top division. I am not complaining that what we went through was unfair (indeed I am aware that many feel what we went through was unfair on THEM). I am just trying to give you an idea of what our daily experience has been like over these past years, and why most, if not all have turned off to any cross-clubs fan initiatives like yours. We have been too used to it being about one thing: punishing us further. It has never been about a desire to see the game improved for everyone. I can see why you have found it hard to find Rangers fans to converse with on Twitter. We have virtually shut up shop. And I have to say, from my perspective, it has seemed that there are really only two groups: those seeing things through blue tinted specs and those seeing things through anti-Rangers specs. That is frustrating. Its been a very common experience of mine on Twitter to come across seemingly reasonable journalists or commentators, and then find them conversing in best pal tones with blogs and accounts which I know to clearly hate all things Rangers and are very clearly driven by an agenda. I’m not saying that there aren’t people trying to be neutral, but its impossible not to let the circles you move in colour your opinions, and it seems to me that these days that there are only two circles. We are definitely at a point as a fanbase where we believe the only people who care about our interests is us.

    Although, the SFA make such a royal mess of everything that nobody would be against that!

    (To be brutally honest, I’ve just gone on to your petition, and the first point references Steven Gerrard getting away with criticising referees. Of all the things to put on there. With the exception of one or two it does indeed seem to be a list of things that Rangers need punished for or got away with. My case is the above. I welcome the debate. Although tbh if I’ve read between the lines correctly on another of your petition points, you think something needs investigated that we’ve spent money SINCE the new company was formed. That’s a bit mad to me and smacks of getting your news from sources with an agenda. Correct me if I’m wrong on that though. Who does the ‘evidence of financial stress’ relate to? Regardless, its nice to find a place where civil debate seems possible.)

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    1. First off – great comment. There’s a lot in there and I won’t run through it all, but loved hearing what Rangers means to you. Hope the article didn’t come across as wanting Rangers punished more to everyone as it wasn’t the intention at all. Pretty sure I didn’t ask for it as it’s not something relevant to the point intended. The difference between saying something was wrong and following that up I guess.

      But the intention is and was to point out the fact that conditions were laid that made it possible. That there’s nothing to prevent it happening again because the same problems haven’t been fixed.

      The Stevie Gerrard thing on the petition was pointing out inconsistency. Much like the tax thing that Rangers were involved is incidental to the point aimed at SFA. To be honest which ever way you think was right should apply to both him and Clarke and wasn’t really offering an opinion on which was right.

      Had a look over the petition too and must say I totally disagree. I can’t see anything in it suggesting Rangers deserve further punishment. There’s something to the “got away with” bit as regards the 2011/12 license and LNS terms I guess but the blame firmly pointed at SFA. Would like to think those would be there regardless of team involved. I don’t think it’d be appropriate to leave them out given it’s unresolved criticism of the SFA.

      Don’t know what you mean about spending money. I do think FFP should be present in the league set up too though. Because it’s important to governance (see the supporters direct position paper on the footer) not because of anything Rangers related.

      In any case a very welcome contribution. Thank you

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      1. Ach maybe had my blue tinted specs on there. This is the thing. It’s very hard to know when you’re letting your ‘circle’ influence you. My reaction was probably because I know there are Celtic blogs out there that predict we are going into administration just about every week, so when I saw the point about, not learning lessons and ‘evidence of financial stress’ at clubs even today my mind went there. Apologies if that’s not the case.

        Same with the Steven Gerrard thing. Was the first point on the petition and I probably let my preconceptions get the better of me ie ‘here’s another campaign to punish Rangers’ Apologies if it that seemed unfair. The internet makes it all the more difficult to avoid the trap of course.

        In the world of Rangers twitter, ‘cheating orange b***ards get away with it again because of Masonic conspiracy at SFA’, gets shared much more widely than, ‘let’s try and find a way to make decisions more consistent’. Your perception of reality is distorted. That’s what I was hinting at with my ‘two circles’ point. It does feel like there are blogs/ articles out there that get shared among readers of a non-Rangers or Celtic variety who are actually Celtic fans with an agenda. They get taken more seriously than they should. But hey maybe I think that because of my own ‘tinted specs’! Could go crazy with that mind you. At some point you need to believe what you believe!

        But I’ll have a second look tonight and see if I was being unfair re ‘a list of things we got away with’.

        Everyone would agree the SFA are shambolic. We all want consistency in decision making and procedures. I’m likely alone here but I think people should chill out a bit when it comes to refereeing decisions. A lot of the noise made there is just people with their tribal hats on. I’ve seen some lay out what they think are excellent cases of hypocrisy, failing to realise that it all rests on their opinion of a tackle. Someone might think Morelos kick at Aberdeen for example was ‘excessive force’, whereas I think it wasn’t. At the root of it all there’s often simply a fan making an emotional decision;. X did that on Tuesday whereas there was that one time when Y did it and nothing happened etc. You would need someone completely and truly impartial to sit down and catalogue every single free kick, penalty, offside, and card of every single game and then ask them their opinion on consistency in the game. That’s the only way you could make any claims with certainty.

        Yes I do understand half of my response there wasn’t relating to anything you’d said in the article. If you’ll forgive me that was quite a few years of opinion coming out! And like I said, places for decent discussion are rare.

        Although you did say in passing, ‘titles won by breaking the law aren’t very sporting’. I’d love to know what your response is to my point about the unique context of tax law and how that relates to cheating. I’ve never really heard anything to counter that. But I can understand if you don’t want to go there. Wasn’t the intention of you article and it can be opening a bit of a minefield, while also knowing it’s unlikely we’ll agree!

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      2. I’m taking it this is the bit you refer to above – but its a bit lenthy so I’ll add comment in between sections to avoid cross-references etc with my additions in bold:
        “I am one of those people who have said, ‘they weren’t illegal at the time’. (I’m going to take the word ‘illegal’ to mean: the EBTs were deemed taxable. A lot of Rangers don’t see that word as being correct. I’m not sure it matters if we all mean the same thing. If it is correct, then there is something unique about the context which seems important to me which I’ll come back to.) I have yet to hear a good explanation of why that is not a logical thing to say. I understand the nature of tax law and that it must be retrospective. You can’t simply announce that a loophole is closed as of today, you need to be able to recover money. If not, morally questionable individuals and businesses could just move on to the next one unaffected. There would be no deterrence to continually diving head first into the grey area.” The relatively recent general anti-avoidance rules and the BEPS influence internationally are two big steps in making taxation a bit more ‘now economy’. Can you tell I’m trying to make is sound a bit sexier than it is? There’s a bit of an argument to be made about Rangers (not the players) and their efforts to mislead (HMRC I think used the phrase ‘tantamount to fraud’) but I think it’d side-track from the real gist so will just move on to the next bit. Its why I conciously tried not to add bits in that could be construed as sniping to try and avoid polarisation.

        “But I don’t see how the unique nature of tax law isn’t entirely relevant to questions of cheating. Tax law allows for the grey areas where other crimes do not. You know you are taking a gamble and that you might fall on the wrong side of the law. But the key part there is might. You also might not. You also are not hiding anything or disputing what you have done”. That’s not entirely true, the club certainly hid things – contracts from the SFA that would lead to questions and mislead HMRC about the existence of the same. When HMRC becomes aware of a scheme trying to taken unfair advantage of the existing framework it normally publishes it here and gives them a reference number while its investigating. It normally invites people to come forward if they’ve been a part of one. They normally go lenient on people who do so. The whole situation is a bit complicated further by the 2017 Finance Act allowing retrospective chasing of really old EBT related tax debts when before they were only chasing those since the 2011 Finance Act. You can see why I’d not over complicate an article I want to be accessible I’m sure. A lot of individuals knowing they were on the hook waited it out instead of coming clean despite HMRC being consistent that they were all taxable. Sometimes HMRC does even offer a bit of an amnesty on some issues. Yes, I simplified the morality bits, but I don’t believe the eventual premise was compromised in doing so. On the off chance you want to read a bit more about coming clean and how the net was going to close anyway on them, I’d highly recommend these articles by two people I know very well. https://apeiron.gg/2017/03/19/hm-revenue-customs-invites-you-to-come-clean/ and https://apeiron.gg/2017/03/11/now-taxation-in-the-now-economy/

        “You could never say, ‘I did intentionally kill the guy but it wasn’t murder’, and then have courts and judges disagree and spend a long time figuring out whether you are correct. The argument of cheating would be more persuasive if as soon as HMRC discovered what Rangers were up to all and sundry declared it obviously illegal. That was not the case. It went to the Supreme Court. As I understood it there were dissenting opinions out there in the tax world, right up until the very last moment. It is very hard to equate something like that to cheating in my view.”
        The side letters were always going to be the smoking gun on this. I did read some articles suggesting otherwise but really struggled to work out why they thought differently. Even in the one marquee case that went partially Rangers way it was clear (to me anyway) from the dissenting opinion that HMRC would succesfully challenge it. HMRC said all along tax was due on these schemes (meaning the other side arguing that HMRC got the law wrong), but it needed tested in law to become binding and Rangers were who set the precedent. Put really simply, when you give someone a guarantee of remuneration at the same time as his contract is signed to entice him to play for you – how can you really say its not remuneration. Its just not common sense. Even a footballer can see that can’t they?

        So bringing that back around to ‘titles won by cheating aren’t very sporting’…. Much like cycling in the Tour, football is a team event that doesn’t start and end with the people participating. The best equipment, best physios, recovery regimes all play a part and the more money from sponsorship, advertising and other sources you get, the better the combined product you got out there competing. The essence of sport is that if you do everything the best by the rule book, you win. If you start doing things that other people can’t because its not allowed but that help you perform, then you have an unfair advantage. Celtic and Rangers will beat the rest of the teams in Scotland more often than they won’t because of vastly superior resources, backed by fans, staff and infrastructure that makes it all possible. Those are fair advantages built up mainly by making people want to support them over a long time. UEFA recognised that financial unfairness was wrong. Man City and PSG for example are abominations but not breaking any laws or rules (though its debatable). I’d draw short on calling that cheating (though again not by much as I consider it unsporting) but doing something illegal that gives you additional resources to put a better team on the park is cheating. In your ‘marathon’ example, sprinting isn’t cheating – but if everyone did it, what a nightmare the organisers would be having. Like using lots of debt isn’t cheating while Scotland has no FFP, but when the game becomes a catalogue of financial failures the regulator has to take the blame. To me at least, on the individual and club responsibility its a matter of how far you went to get that advantage. That’s my opinion on it but its the SFA that I hold responsible for the lack of oversight to allow that kind of thing to happen. If football had heeded the warnings of the Motherwell’s, Aidries, even Gretna’s etc and enforced responsible management of clubs within parameters (FFP) and proper governance structures at premier teams, then the horrible end result might not have happened.

        I am kind of getting into territory I didn’t want to because it directly involves Rangers, but if you ask how I feel about it I will say. Rangers could have been saved at any point in time up until around 2009. That they were not was due to Murray continuing to lead them in a pig-headed charge towards a glorius ending of one kind or another. By around 2010 the end was inevitable. Do I blame Rangers as a collective, no. The fans aren’t responsible for making sure football teams are run responsibly (though we’d love to see more fan representation!) and the board were lackeys. Do I blame Murray – for being an idiot yes, for causing chaos throughout Scottish football, no. He was an egotist left to drive his club off the edge of a cliff unchecked. I think you know already who I blame for creating the sheer lack of oversight, responsible management and culture of backdoor deals and rule bending that was allowed to flourish. The very people responsible safeguarding the game were her very abusers. So Rangers are part of the story but as I was trying to say, not the story themselves. I appreciate a lot of Gers will find this unkind of me, but I do feel able to give an opinoin I think is based on fact rather than bias. It just cuts across a lot of others ideas of things.

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    2. If you’ll indulge me once more… I took a swipe at ‘the Club’ too but as you rightly read it was squarely pointed at Murray and how everyone else there were irrelevant. He was a one man show able to give corporate governance the heavy-ho. Again the bigger issue to me is the circumstances allowing that to happen.

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  3. Thanks for taking the time. I was aware of what you may say re they didn’t hide anything. But if Rangers fell foul of this law because of the unique way in which they administered EBTs then why was it such an important case that HMRC wanted to set a precedent for? If the answer is-others we’re using this in the same illegal way-then doesn’t it just come back to the point about it being a grey area that a lot of people thought they could exploit and evidently took advice that they could exploit? Even if you have an answer to that you still said-they had to get the precedence set in law for it to be illegal. Isn’t there something inherent in that which suggests ‘illegal’ is not the right word to use for it at the time? You can hate it all you want, which as I’ve said I will likely agree with you in that side of it, but unless you believe there is some objective morality that we should all instinctively know and when people fall the wrong side of it-even if we haven’t actually written the laws yet-we all just say, aye but it’s illegal and we’ll just write the law now, then I can’t equate it that to cheating.i can equate it to someone acting poorly that will get them in trouble.

    As for the recent law changes, I willl try and take a look through those articles you posted. It seems it would definitely give weight to the ‘immoral, reckless, pig headed’ argument, but just from a common sense perspective I’m not sure it would change my view in terms of calling it cheating at the time.

    Imagine we hadn’t had the scenario where the clubs assest were bought and transferred to a new company and Murray and Rangers were lumped with the huge bill that would have come in last summmer? What would it have been? It’s fair to say the club would have been in serious serious trouble. And even someone like Whyte wouldn’t have stepped in. I think then a lot of people wouldn’t be seeing this as an injustice. Rather the chickens coming home to roost for an arrogant and morally questionable individual. Absolutely understand hating the way that situation has been avoided, and hating Murray, Rangers etc as a result (tbh I have my suspicions about Whyte ‘duping’ Murray), but again it doesn’t compromise the logic of saying it wasn’t cheating at the time in my view.

    As it happens, Rangers the football club avoided the ‘direct’ consequences of Murray’s actions, but suffered massively from the ‘indirect’. It would be quite hard to get your head around Manchester United, Bayern Munich or Barcelona being relegated to the bottom rung of the game in their respective countries. That’s the equivalent of what we experienced. I think the reaction of anyone outside Scotland would be ‘wow, what a punishment’, and the idea that they had got away with something would have been thought absurd. It is my opinion that a lot of this comes from a feeling rather than logic. If we had ended up in the third division, fans gave up, no one wanted to put money in, and we were still there struggling away to this day-again I think people would see that as a just punishment for the way Murray ran the club and the noise wouldn’t be so loud for stripping titles. That we came back in 4 years doesn’t alter the logic of what happened before, even if I can understand why it stokes a feeling of unfairness for the rest of the clubs in the game.

    Anyway know you didn’t want to get into this. But I am genuinely curious. I feel I understand the ‘cheating’ position more now. You are absolutely right about aiming the guns at the SFA. We had the absolutely farcical situation of months down the line, when it had become clear to everyone what Craig Whyte was, of them announcing that he wasn’t fit for purpose. No shit. I spent a lot of time thinking about what the SFAs purpose actually was. It seemed they were simply there to enforce a rule book whenever things went tits up rather than to act as custodians of the game and prevent bad things from happening.

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    1. Promise I’ll look and respond properly over the weekend. In the meantime I’ll just take on the first item. They didn’t fall foul because of that, they were selected to set a precedent because of that. HMRC needed to win to chase similar cases and with the weight of a big result at their back they can make demands of the big plc’s who did not so different (maybe minus side letters). Because Rangers were caught with the smoking gun they became the test case. If a lot of others without that later try their luck they’ll find themselves up against case law precedent meaning a bigger obstacle to overcome. Take the easy win first if you see what I mean. You are right lots did it. Most new it was close to the line if not over it (mainly in business but some football including arsenal – who settled up). Those caught in the act knowing it was cheeky paid up. HMRC ‘said’ it was illegal at the time and started making demands. It wasn’t ‘shown’ to be until the Rangers decision if that makes sense. It doesn’t make it legal before it just makes it “not demonstrably illegal but probably illegal and ultimately shown to be illegal”. That’s not a legal term 😂

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  4. Sorry something crazy at work stopped me getting back to you quicker. I’ll get back on the rest now.
    “Even if you have an answer to that you still said-they had to get the precedence set in law for it to be illegal” – Not quite. HMRC always saying it was illegal according to the laws. SHOWING it to be illegal by winning the case in the highest court establishes it was always illegal. The bit you wrote following this kind of was what my point about the grey areas was all about in the main article. You know you’re taking a view on it that might well be disagreed with, challenged and found wrong. The more aggressive, the greater the likelihood. Rangers bought an ‘out the box’ scheme and decided to do it differently undermining what made it tax effective MAYBE in the first place. It was most assuredly always illegal what they did.

    With regards to the fourth para and the direct consequences – at the risk of sounding unsympathetic, its incidental. I don’t really have strong feelings one way or the other for Rangers, but whatever the consequences, its not what I was writing about if you get my drift. I was only discussing the acts as they happened and what was or should have been known and the moral implications then. What happened after is just the consequences whatever way they fall.

    Last para though – right on the money. No heed was paid to the plights of Motherwell, Airdrie, Clydebank etc. No lessons learned. No oversight over what clubs did with their money. Murray was allowed to recklessly borrow, gamble and (I’m sure we’ll argue) cheat because of a lack of governance and oversight from the very body responsible. Rangers fans ultimately were the losers though they felt like winners while he was throwing the chips around. Its the SFA who should have protected them from his hubris in the same way the banking regulators were asleep at the wheel in another industry.

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