Why the Beast of Armageddon Failed to Show?


Agrajag says: Sunday, November 25, 2012 at 11:54 0 0 Rate …

Comment on Why the Beast of Armageddon Failed to Show? by HirsutePursuit.

Agrajag says:
Sunday, November 25, 2012 at 11:54
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HirsutePursuit says:
Sunday, November 25, 2012 at 11:47


If I remember correctly they registered players during a UEFA registration ban.

They then played those player, having gone to the Swiss civil Courts to effectively “overturn” the ban.

UEFA subsequently ejected them from the Europa League.

I would have to check though, just from memory.
Sorry. Should have been clearer. I get why UEFA got involved WRT Sion.

I’m just not sure why they would want to get involved WRT to players registrations for domestic leagues.

HirsutePursuit Also Commented

Why the Beast of Armageddon Failed to Show?
paulmac2 says:
Sunday, November 25, 2012 at 11:25
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The other issue they need to bear in mind…it would have made those same players ineligable for European games…and that may or may not draw in UEFA…
Genuinely don’t know the answer to this.

Which UEFA rule(s) do you think rendered players ineligible for UEFA competitions?

The SPL enquiry is regarding players’ eligibility to play in the SPL competition. It would not, in my view, extend out into European competitions – unless there are specific UEFA provisions to do so.

Personally, I am not aware of any relevant UEFA articles or rules (with regard to lodging player contracts with the SPL) that would affect a player’s eligibility for European games. That is not to say that such rule(s) do not exist.

Why the Beast of Armageddon Failed to Show?
redetin says:
Saturday, November 24, 2012 at 19:57
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HirsutePursuit says:
Saturday, November 24, 2012 at 19:39

No-one, not MIH, not HMRC, not Mr Thornhill nor MR Thomson is arguing that the EBT loans are a sham. They are not.

HP, as a point of detail the HMRC inspector who gave evidence considered the trust and its management to be a sham.

“Inspector 1 explained, however, that he viewed the Trust’s management as a “sham”. There had been a change of Trustee in circumstances which aroused HMRC’s suspicions

Also, other circumstances that led Inspector 1 “to conclude that the loan arrangements were a sham.

The HMRC QC, Mr Thomson “stressed that he did not view the loans as “shams”.”

You do wonder why the legal team decided not to support the view of the HMRC inspector and I’m sure there is something more behind this strategy.
I suspect the tax inspector was simply giving his professional opinion on the commercial reality of the transactions as he saw them.

I also suspect that the QC felt that proving such an assertion (in strict legal terms) would have been a battle that would have been very difficult to prove.

Mr Thomson preferred (correctly in my view) to rely on existing case law and argued that the loans could be legally real; but still disregarded for tax purposes as commercially unreal.

It is a legal argument that the Upper Tribunal will surely be asked to consider further.

Why the Beast of Armageddon Failed to Show?
No-one, not MIH, not HMRC, not Mr Thornhill nor MR Thomson is arguing that the EBT loans are a sham. They are not.

They have legal form and effect. Theoretically and legally, the ultimate beneficiaries of the trusts (from which the loans were made) are the partners and children of the former RFC employees. At the moment the money passed to the Jersey trustees, it was no longer the legal property of MIH/RFC.

Even if the FTT(T) had unanimously found in favour of HMRC, the legal position of the loans would not have changed.

There is no legal mechanism (that I can envisage) that would see the loans repaid to the trust and the capital winding its way back to the creditors of The Rangers Football Club plc. In my opinion, there is no realistic prospect of bdo even attempting to create such a scenario.

Simply put, Rangers cannot be “repaid” money they are not owed.

Mr Thomson argued that the loans should have been taxed as income – not that the loans did not exist. He argued that the loans (although legal) were not commercial in real terms – since there there is no realistic prospect that these loans will be repaid during the employees lifetime.

Mr Thornhill argued that it was sufficient that the loans created a debt on the employee’s estate – they did not need to be repaid during the employees life – to make them commercially real.

The majority agreed with Mr Thornhill – though Ms Poon, in her dissenting opinion, showed that she was certainly persuaded by Mr Thomson’s logic.

As am I.

I now turn to Lord Hoffmann’s critical analysis on when a genuine legal transaction can be disregarded. As applied to the present case, his question is: ‘How can a transaction [a loan] be said not to be a ‘sham’ and yet be ‘disregarded’ for the purpose of deciding what happened in ‘the real world’?’ The response to this question encapsulates the differences between the dissenting opinion and the majority Decision. Lord Hoffmann’s dictum is: ‘The point to hold onto is that something may be real for one purpose but not for another.’ He explains at [41] what these two contrasting purposes are by using the transactions in Ramsay as an example. When the transactions were said to be not sham transactions, ‘one is accepting the juristic categorisation of the transactions as individual and discrete’, and that ‘they had a legal reality’. When the transactions were said to be not a ‘real’ disposal giving rise to a ‘real’ loss, it is this juristic categorisation that is being rejected. When should the juristic categorisation be rejected? The condition for its rejection is when it is not ‘determinative for the purposes of the statutory concepts of ‘disposal’ and ‘loss’ as properly interpreted’. He finishes his explication by stating simply: ‘The contrast here is with a commercial meaning of these concepts.

Adopting Lord Hoffmann’s approach to view the fact in the instant case, we have two contrasting purposes for the loans advanced through the trust mechanism. When the loans are said not to be shams, we are accepting the juristic categorisation of the loans, and acknowledge that they have a legal reality. When the loans are said not to be ‘real’ loans giving rise to a ‘real’ liability, it is this juristic categorisation that is being rejected. The reason for its rejection is that the juristic categorisation is not determinative for the purposes of interpreting the statutory concepts of payments as earnings. The contrast here is with a commercial meaning of these concepts: the loans are real for juristic purpose, but not real for commercial purpose.

Recent Comments by HirsutePursuit

Who Is Conning Whom?
I am with you in most of what you say, but there are some important differences.

SFA Article 6.1 & 6.2 say:

Clubs or associations undertaking to promote Association Football according to the Laws of the Game and these Articles and other rules of the Scottish FA may be admitted as registered members, associate members or full members, subject to the provisions of Articles 6.2 to 6.7 (both inclusive).
6.2 A club or association shall be admitted as a registered member automatically by reason of its being admitted as a member of an Affiliated Association or an Affiliated National Association, or in the case of a club through membership of or participation in an association, league or other combination of clubs formed in terms of Article 18 and in the case of an association by being formed in terms of Article 18, provided it is not already an associate or full member. A registered member shall not be a member of more than one Affiliated Association or more than one Affiliated National Association. A registered member may apply at any time to become an associate member.

We are in complete agreement, I think, that SFA Article 6.2 made Sevco a registered member of the SFA from the date it was accepted by the SFL – 14th July 2012.

But, and I think this is important, the nearest the SFA get to insisting that a club has associate or full SFA membership is Article 6.2 which simply says, ‘A registered member may apply at any time to become an associate member.’
Note: no timescale applies… and no consequences (from an SFA perspective) if a club chooses to not make that application.

So I think we are on common ground that Article 6.2 was applicable as far as the registered membership was concerned – and Sevco did not take the opportunity to apply for associate membership by this method.

If we then go back to what the SFL Rules actually said:

6. REGISTRATION WITH SFA A CONDITION OF MEMBERSHIPA Member or Associate Member who is not already a full or associate member of the Scottish Football Association must make application to become a full or associate member of the Scottish Football Association (as the case may be) within fourteen (14) days of being admitted to membership of the League failing which its membership of the League will lapse, and in the event that the application is unsuccessful, its membership will lapse upon that decision being intimated to the League.

Now, if the SFL was being prescriptive about which SFA Article was to be used (to apply for full or associate membership), and that Article 6 was the only valid route, why mention full membership as an option. If ‘application’ is meant to mean only applications in terms of SFA Article 6, the only relevant option would be to apply as an associate SFA member.

No, the SFL rules are not prescriptive in the manner of that application. I think Rule 16 is clearly written to allow a transfer of associate or full membership from an existing club to a new club or entity under SFA Article 14. 

In fact the only method by which this could be achieved is SFA Article 14

14. Prohibition on Transfer of Membership14.1 It is not permissible for a member to transfer directly or indirectly its membership of the Scottish FA to another member or to any other entity, and any such transfer or attempt to effect such a transfer is prohibited, save as otherwise provided in this Article 14. Any member desirous of transferring its membership to another entity within its own administrative group for the purpose of internal solvent reconstruction must apply to the Board for permission to effect such transfer, such consent not to be unreasonably withheld or delayed. Any other application for transfer of membership will be reviewed by the Board, which will have complete discretion to reject or to grant such application on such terms and conditions as the Board may think fit.

…which allows the board to grant an application for transfer of an existing membership on such terms as it sees fit.

Importantly, the discretion only applies to which terms and conditions to a transfer of a membership that already exists.

Having complete  discretion on how or if that transfer (of full membership) took place is completely within the board’s power via Article 14.

What it doesn’t do is empower the board to create a new type of membership. 

And, even if it does claim to have done so, I still don’t understand how the SFA ‘conditional’ membership would satisfy the SFL requirement for an application for associate or full membership?

Remember, this transfer application was an SFL requirement. The SFA had no interest in whether or not Sevco applied for associate or full membership.

It seems to me that the SFA and SFL approached the Sevco scenario in a similar way as they did when Inverness Caledonian were admitted (as a new club) in 1994.

Difference is ICT, the SFL, SPL and SFA all recognise that that club was founded in 1994.

As I said earlier with regard to the birth of Sevco, the deceit is not so much in what they all did, but in what they said and continue to say.

Who Is Conning Whom?
The new club (Sevco) was issued with written permission to use the name of a club in full membership (Rangers).

This was necessary because both existed as SFA member clubs at the time.

Who Is Conning Whom?
This was the nub of the ‘conditional membership’

10.7 Each club in full membership or associate membership shall in its Official Return register its ground and playing field dimensions and no such club shall remove to another ground without first obtaining the consent of the Board. Any club in full membership or associate membership wishing to make any alteration to its name, its registered ground or its playing field dimensions must first obtain the prior written consent of the Board. No club in registered membership shall adopt in whole or in part the name of a club in full membership or associate membership without the prior written consent of the Board.

Who Is Conning Whom?
The 14 day application deadline was an SFL requirement – not something that the SFA had any locus in considering.

As long as Sevco was a member of the SFL it was a member of the SFA.

It would have been up to the SFL management committee to decide if the application for transfer (rather than application for a new associate membership) met its requirements. If it did not, it would have been within its powers to revoke Sevco’s league membership. It is an arguable point, but there is no suggestion, as far as I’m aware, that the SFL league management committee ever met to even discuss the matter.

Nevertheless, I think you are saying that Sevco was no longer a member of the SFL at the time of the SFA statement – therefore needed this ‘new’ SFA membership category to play Brechin.

But how would any type of membership of the SFA help if it was no longer a member of the SFL? If its membership of the league had already lapsed or been revoked, another SFL EGM would have been required to try and vote the club back in. I’m 100% sure that did not happen.

On 29th July, Sevco must still have been a member of the SFL as the Ramsden Cup was only open to members of that league.

There was simply no mechanism for the club to rejoin the league in the available time. If it did not rejoin (and I’m as certain as I can be that it did not) then it cannot ever have been removed as a member of the SFL.

And as I keep saying, as a member of the SFL, it was also a member of the SFA.

The SFA’s deceit was not in its actions – but was in its words.

Don’t forget that the SFA had to consider the use of the Rangers name. The ‘conditional’ membership squirrel has been particularly useful in covering up the SFA board’s approval for Sevco to play Brechin under the Rangers name.

That, in reality, was the big announcement on that day. The rest was sleight of hand.

Smoke and mirrors.

Who Is Conning Whom?
The golf club analogy has been used before.

Dear old dad is a member of St Andrews (other golf clubs are available). To make best use of the facilities new members must apply to a ‘house’ that will give access to their respective lounges and bars. After 15 years of continuous membership Mon pere was awarded the status of ‘Gold Member’.

Gold Members have their own lounge and gain a range of additional benefits. 

Recently poor old dad has become poorly and suggests that l join the golf club and take over his ‘Gold Membership’.

I join the club and, with a letter of agreement from sickly pater, apply for the transfer of his ‘Gold Membership’ status.

The committee meet and decide that I can only take on the enhanced membership status if old pop dies.

I tell them that father is on his last legs and won’t last the weekend.

As an existing member I can enter the club’s Saturday medal competition. On a conditional basis, they tell me I will be eligible to use the ‘Gold Members’ facilities. They issue me with a letter to confirm this arrangement.

They will reconvene in several weeks to confirm the transfer of membership status – assuming that by then papa will be gone. If he makes a miraculous recovery I must then apply to join one of the standard houses.

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