James Campbell
Partner | Legal
Jersey
Partner
Jersey
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Insight
15 August 2017
Jersey
2 min read
Team: Josephine Howe
ON THIS PAGE
Fortified by the recent Supreme Court judgment in favour of HM Revenue and Customs in RFC 2012 Plc (in liquidation) (formerly The Rangers Football Club Plc) (Appellant) v Advocate General for Scotland (Respondent) (Scotland) [2017] UKSC 45 (the Rangers Case), HMRC have already begun to issue enforcement notices to sponsoring employers for the payment of tax and National Insurance (NIC) liabilities in respect of employee benefit trusts (EBTs) on the basis that the arrangements facilitated forms of disguised remuneration to employees.
HMRC's response is not unexpected. When the judgment was issued in July, HMRC issued a strongly-worded statement, describing the ruling as having "wide ranging implications" and underlining its determination to "always challenge contrived arrangements that try to deliver tax advantage never intended by Parliament".
Where enforcement notices have been issued, sponsoring employers may seek to recover the amounts owed from the trustees or the beneficiaries of the EBT in question.
Trustees of EBTs that find themselves in this position must consider whether any such liability to income tax and NIC is rightly payable from the trust fund of the EBT, or by the sponsoring employer.
Precisely where the liability sits will depend on the provisions of individual trust instruments constituting the EBT in question – there is no common "one-size-fits-all" answer.
The issues that affected trustees should now consider are as follows.
It is, of course, not surprising that sponsoring employers do not want to be left with liability for tax and NIC payments in the wake of the Rangers case – but the question of whether it is right that the trustees should bear the cost of such liabilities is one that will hinge on the specific terms of the trust documents and the specific circumstances of the case.
Trustees should therefore seek appropriate advice, both UK tax advice and advice in the jurisdiction of the proper law of the EBT, before taking any action.
James Campbell
Partner | Legal
Jersey
Partner
Jersey
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Josephine Howe
Partner | Legal
Jersey
Partner
Jersey
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Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.
This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
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