Murray Holdings – Scottish Inner House finds that payments derived from employment service are assessable even where they are agreed to be redirected to a 3rd party

A group of companies, which ran a Glasgow football club, implemented a scheme for their key employees to avoid income tax on their annual bonuses. The bonus for each employee would be paid by the employer to a master trust whose trustees in their discretion would use the amount to settle a sub-trust with the class of beneficiaries (usually the employee's family members) determined by them after reading a letter of suggestion from the employee. The trustee of the sub-trust would lend all the funds to the employee under a long-term loan at LIBOR+1.5%, and the employee as sub-trust protector could change beneficiaries or the trustees of the sub-trust.

In finding that this scheme did not work, i.e., the payments to the master trust were taxable employment income subject to source deductions, Lord Drummond Young (in the highest Scottish court) applied the principle that

if income is derived from an employee’s services qua employee, it is… assessable to income tax, even if the employee requests or agrees that it be redirected to a third party….[I]t is irrelevant that the…trustees who receive the payment, at whatever remove, exercise a genuine discretion as to what happens to the funds.

In finding that the (Scottish) Inner House was entitled to decide on related questions of English trust law, Lord Drummond Young noted that it be “would be highly artificial” to consider that it was bound by the findings on English law made by the tribunals below (which had acknowledged U.K.-wide jurisdiction), and that “Scottish judges should not have any great difficulty in understanding English law, and are expected to do so in the Upper Tribunal and UK Supreme Court,” stating that:

No doubt the theoretical nature of a trust is different, being based on the notion of legal estate and equitable interest in England, whereas in Scotland it is based on the notion of dual patrimonies of the trustee. Nevertheless the practical results are similar… .

This issue was not raised in Boettger, where a Quebec court dealt with an Alberta trust.

Neal Armstrong. Summaries of Advocate Gen. for Scotland v. Murray Group Holdings Ltd., [2015] CSIH 77, [2015] BTC 36 under s. 6(1)(a) and General Concepts – evidence.