Counter-Avoidance
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Mr Arthur Lewis
Newcastle Upon Tyne
By email: request-539470-
NE98 1ZZ
xxxxxxxx@xxxxxxxxxxxxxx.xxx
Email
xxx.xxxxxxx@xxxx.xxx.xxx.xx
Web
www.gov.uk
Date: 15 January 2019
Our ref:
FOI2018/02760
Dear Mr Lewis
Freedom of Information Act 2000 (FOIA)
Thank you for your request, which was received on 14 December, for the following
information:
“I have received a letter from HM Treasury stating that:
1. "It is the view of HMRC and the courts that these schemes have never been effective and
that tax was always due"
2. "The most well known judgement was the unanimous Supreme Court decision in favour of
HMRC in the Ranger Football case"
3. " Furthermore, the tax consequences the DR schemes claimed to achieve were not
allowed under the law at the time".
Please can I have specific information on:
a) What court rulings are HMRC pointing to that would overturn Rangers (as Rangers said it
was an employer liability and employer liability cannot be transferred to an employee)
b) What specific laws/regulations are HMRC relying on to say " were not allowed under the
law at that time"”
Question (a)
HMRC welcomed the unanimous decision of the Supreme Court in confirming that the tax
avoidance scheme used by Rangers Football Club did not work and that tax was due, as
contended by HMRC. In the Rangers case the employer’s (RFC 2012 Ltd) appeals were
heard by the Supreme Court against PAYE determinations under the PAYE Regulations for
Income Tax and NIC that ought to have been paid to HMRC but were not. Please see
paragraph 7 of the Supreme Court decision in the link below.
In terms of who is chargeable, Pay As You Earn (PAYE) liabilities fall on the employer in the
first instance and HMRC will pursue employers who have used DR schemes for the tax that
Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
is due. HMRC will only go to the employee to settle their income tax liability in cases where it
cannot reasonably be collected from the employer, for example where the employer is
located offshore or is no longer in existence.
Regulation 80 of the Income Tax (PAYE) Regulations 2003 gives HMRC the power to
determine the PAYE tax that ought to have been paid to HMRC but were not. Under
Regulation 80, HMRC may serve a determination notice on the employer to recover the
unpaid tax.
Once the Regulation 80 Determination is final and conclusive and 30 days have passed
without payment being made in full or part, HMRC may consider issuing a direction under
Regulation 81(4). This directs that the employer is no longer liable to pay the amount of tax
due. The sums will instead be recoverable from the employee in accordance with the
direction made, this aspect was not a decision before the Supreme Court.
From 5 April 2019, the loan charge taxes outstanding DR loans on the employer or
employee depending on the circumstances and unless settlement of liabilities has been
reached with HMRC.
Question (b)
Tax is charged on employees’ earnings under Income Tax (Earnings and Pensions) Act
2003 (ITEPA) and before that on emoluments, as defined, under Income and Corporation
Taxes Act 1988. The legislative roots of employment earnings charges are explained by the
Supreme Court from paragraph 5 of its judgment, which is available at:
https://www.supremecourt.uk/cases/docs/uksc-2016-0073-judgment.pdf
If you are not satisfied with this reply you may request a review within two months by
emailing
xxx.xxxxxx@xxxx.xxx.xxx.xx, or by writing to the address at the top right-hand side
of this letter.
If you are not content with the outcome of an internal review you can
complain to the
Information Commissioner’s Office
Yours sincerely,
Freedom of Information Team
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