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You are here: BAILII >> Databases >> First-tier Tribunal (Tax) >> Knowledgepoint 360 Group Ltd v Revenue & Customs [2011] UKFTT 438 (TC) (30 June 2011) URL: https://www.bailii.org/uk/cases/UKFTT/TC/2011/TC01291.html Cite as: [2011] SFTD 977, [2011] STI 2497, [2011] UKFTT 438 (TC) |
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[2011] UKFTT 438 (TC)
TC01291
Appeal number: TC/2009/16970
National Insurance Contributions – Class 1 – payment by
employee benefit trust to employee following sale of sponsoring company –
whether a “gratuity” – yes – whether the Appellant indirectly allocated the
payment to the employee – no – whether payment made indirectly by the
Appellant – no – Social Security (Contributions) Regulations 2001/1004,
Regulation 5 – payment disregarded in calculating earnings – Channel 5 TV
|
FIRST-TIER TRIBUNAL
TAX
|
|
Appellant |
-and-
|
THE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMS (NIC) |
Respondents |
TRIBUNAL: |
KEVIN POOLE (TRIBUNAL JUDGE) SUSAN STOTT FCA, CTA |
Sitting in public in Manchester on 13 and 14 June 2011
Sadiya Choudhury, instructed by Knight & Sons LLP for the Appellant
Colin Williams, Presenting
Officer of HMRC
for the Respondents
© CROWN COPYRIGHT 2011
DECISION
1.
This appeal concerns the liability of the Appellant to account for
primary and secondary class 1 National Insurance Contributions (“NICs”) in
relation to cash payments made to one of its employees in October 2003 and
February 2004. The payments were made by the trustees of an employee benefit
trust following an earlier sale of the shares in Gardiner-Caldwell (Holdings)
Limited (“Holdings”), the parent company of the Appellant’s group
of companies.
3.
HMRC
and the Appellant were helpfully able to agree a statement of facts,
which forms the basis of our findings of fact, and is set out in full below.
4.
We also heard oral evidence from Stephen Angrave (“Mr Angrave”) the
Managing Director of Holdings and of the Appellant, William Gardiner (“Mr
Gardiner”), the chairman of Holdings, Stephen Roxborough (“Mr Roxborough”), Operations
Director of the Appellant and director of Holdings and Vivien
Adshead (“Mrs
Adshead”), a senior employee of the Appellant (all as at the relevant time).
“STATEMENT OF FACTS
1. Knowledgepoint
360
Group
Limited (“the Appellant”) is
the successor company [in fact, it was established at the hearing that it is
the same company, having simply changed its name] of Gardiner-Caldwell
Communications Limited (“Communications”) [the Appellant], which was the
main operating company of the Gardiner-Caldwell
group
of companies (“the
Group”),
whose holding company was Gardiner-Caldwell Holdings Limited (“Holdings”).
2. In 1992, an employee benefit trust known as the Gardiner-Caldwell Employee Trust (“No. 1 Trust”) was set up for the benefit of the employees of Communications. Until 28 December 2001, the trustee of the No. 1 Trust was known as Gardiner-Caldwell Trustee Limited, which was a 100% subsidiary of Holdings.
3. In 1997, a second employee benefit trust known as the Gardiner-Caldwell Employee (No. 2) Trust (“No. 2 Trust”) was set up, also for the benefit of employees of Communications. Until 28 December 2001, the trustee of the No. 2 Trust was Gardiner-Caldwell Trustee (No. 2) Limited, which was also a 100% subsidiary of Holdings.
4. The major difference between the two Trusts was that the No. 1 Trust excluded from the class of beneficiaries all persons who would cause section 13(1) Inheritance Act 1984 not to apply to a disposition by the Trust. No such exclusion of beneficiaries was made by the No. 2 Trust.
5. In the summer of 2001, Thomson Healthcare plc
(“Thomson”) entered into negotiations with Holdings for the purchase of
Holdings’ entire share capital. It was agreed during these negotiations that
the Trusts would cease to be associated with the
Group
and their funds would
not be under the control of the
Group
or Thomson. [In fact, the initial
position of Holdings in the negotiations was that the Trusts would be included
but Thomson at first rejected this, saying it was a “complication too far”. It
then sought effectively to reverse this position in the draft documents
produced by its lawyers and a final compromise was reached, as set out in 6
below.]
6. On 28 December 2001, the entire issued share capital of Holdings was acquired by Thomson for consideration in cash and loan notes of approximately £39 million. Prior to this purchase, the following steps were carried out:
(a) the power to appoint new
trustees in respect of both Trusts was vested
in their respective trustees and
was no longer
vested
in Holdings;
(b) on 6 December 2001, the shares in the two trustee companies were transferred to the joint names of Mr Dennis Hall, consultant to the firm of solicitors acting for the share sellers, and Mr William Gardiner, the then chairman of Holdings; and
(c) the trustees of both Trusts covenanted not to make any distributions without first informing the board of Communications of their intention to do so and consulting with a majority of members of that board as to the proposed distribution. [The precise wording in the relevant deed was as follows: “The First/Second Trustee covenants not to make any distribution from the First/Second Trust without first informing the board of directors of the Company (“the Board”) in writing of the proposed distribution and consulting in good faith with a majority of the members of the Board as to the proposed distribution.”]
7. The names of Gardiner-Caldwell Trustee Limited and Gardiner-Caldwell Trustee (No. 2) Limited were changed to The George Scheme Limited and The David Scheme Limited respectively on 8 February 2002. The directors of both these trustee companies from 4 December 2001 were Mr Gardiner, Mr Hall, Mr Stephen Angrave and Mr Stephen Roxborough. The No. 1 Trust and the No. 2 Trust are now commonly referred to as “the George Scheme” and “the David Scheme” respectively after the change of names of their respective trustees even though the names of both Trusts remained the same as before. [The name changes were done in order to emphasise the split away from the Appellant.]
8. On 28 December 2001, Mr Gardiner resigned as a director and chairman of Holdings and three non-executive directors were appointed at the request of Thomson. Mr Angrave and Mr Roxborough continued in their positions as directors of Holdings.
9. In May 2002, Mr Gardiner resigned as a director of both The George Scheme Limited and The David Scheme Limited and was appointed a trustee of both Trusts. [This was connected with his emigration from the UK for tax purposes, in connection with which he was advised to resign all directorships of UK companies; he was effectively able to continue his involvement as before by becoming instead a trustee of both trusts.]
10. As a result of the sale of
the share capital to Thomson and the exercise of share options by employees
prior to the sale, there was a large amount of cash in the two Trusts. The
trustees decided to make cash payments to those employees who had contributed
to the success of the Group
prior to its sale to Thomson.
11. In October 2002, the No. 1 Trust made a payment to beneficiaries who had been employees of Communications on 28 December 2001 and satisfied certain criteria. Its trustee, The George Scheme Limited, paid £144,978.51 secondary class 1 national insurance contributions (NIC’s) in respect of this payment. The No. 2 Trust also made a payment in November 2002 in respect of which its trustee, The David Scheme Limited, paid £18,861.71 secondary class 1 NICs. Income tax and primary Class 1 NICs were also deducted from both payments.
12. The trustees of both Trusts claimed repayment of the secondary Class 1 NICs they had paid in respect of these sums by letters sent to HM Revenue and Customs (“the Respondents”) on 30 March 2005.
13. The No. 1 Trust made two further payments during the period 6th April 2003 to 5th April 2004: one in October 2003 and the other in February 2004. Income tax was deducted from both these payments. No deduction was made in respect of primary and secondary Class 1 NICs in respect of the payments made between 6th April 2003 and 5th April 2004.
14. One of the beneficiaries to
whom payments were made from the No. 1 Trust was Mrs Vivian
Adshead, who was
the director of commercial operations of Communications.
15. On 13 November 2009, the Respondents issued a decision under section 8 of the Social Security Contributions and Benefits Act 1992 in respect of the payments made by the No. 1 Trust to Mrs Adshead, as a representative employee of the Appellant, during the period 6th April 2003 to 5th April 2004. According to this decision, the Appellant had paid primary and secondary Class 1 NICs equal to £[amount redacted] in respect of Mrs Adshead’s earnings for this period. The Respondents contend that the Appellant was actually liable to pay the sum of £[amount redacted] in respect of those earnings. The difference between these two figures, £[amount redacted], was the sum of primary and secondary Class 1 NICs the Respondents contend the Appellant was liable to pay in respect of the payments to Mrs Adshead from the No. 1 Trust during the period.
16. The Appellant appealed this decision to the Tribunal on 1 December 2009 and contends that it was not liable to pay any NICs in respect of the payments received by Mrs Adshead from the No. 1 Trust during the period in question.
17. If the Appellant’s appeal is upheld, it contends that it is also entitled to a refund of the secondary Class 1 NICs paid the trustees in respect of the payments made to beneficiaries between 6th April 2002 and 5th April 2003, equal to a total of £163,840.22.
18. If the Respondents’ decision in upheld in respect of the payments to Mrs Adshead, the Appellant will not only be unable to claim this refund but will also be liable to pay primary Class 1 NICs of £46,040.94 and secondary Class 1 NICs of £194,986.65 in respect of the total payments made by the No. 1 Trust to beneficiaries between 6th April 2003 and 5th April 2004, giving rise to a total liability of £241,027.59 in respect of this period.”
“The Company wishes to establish this Trust as an employees’ share scheme to act as an incentive for its officers and employees and intends to pay to the Trustees the sum of £100 to be held in accordance with the terms of this Trust and from time to time further money, investments or other property may be paid or transferred to the Trustee by way of addition”
“2. TRUSTS
2.1 SUBJECT to the provisions of clause 3 below, the Trustee shall hold the Trust Fund and the income thereof upon such trusts for the benefit of the Beneficiaries or any one or more of the Beneficiaries exclusive of the other or others in such shares and proportions and (where appropriate) subject to such terms and limitations and with and subject to such provisions for maintenance education or advancement or for forfeiture in the event of bankruptcy or otherwise and with such discretionary trusts and powers exercisable by such persons as the Trustee shall from time to time by deed or deeds revocable or irrevocable executed before the Distribution Date but without infringing the rule against perpetuities appoint BUT SO THAT the Trustee shall have power from time to time before the Distribution Date (but without infringing the said rule) to pay or apply the whole or any part or parts of the unappointed capital of the Trust Fund to or for the benefit of such one or more of the Beneficiaries as are for the time being living in such shares as the Trustee in its absolute discretion shall think fit without the necessity for a deed or deeds.
2.2 IF there is any question as to whether an individual is a Beneficiary, and in particular any question of whether a person is an employee or former employee of the Company, the Trustee shall refer the question to the Board of Directors or a duly authorised designated Committee of the Board of Directors of the Company whose written determination of the point shall be final and binding.
2.3 NOTWITHSTANDING any other provisions of this Deed, any property which is comprised in the Trust Fund shall not be applied for the benefit of any person for whose benefit the trusts could not permit it to be applied without Section 13(1) of the Inheritance Tax Act 1984 (5% plus participators) thereby failing to apply to such disposition or payment AND PROVIDED THAT it shall not be applied in such a way as to cause this Trust to cease to be an Employees’ Share Scheme as defined in Section 743 of the Companies Act 1985.
2.4 SUBJECT as aforesaid the Trustee shall have the following powers exercisable at any time before the Distribution Date:
2.4.1 power from time to time by deed naming the individual concerned to include in the Beneficiaries any individual except any individual who may for the time being be excluded from the Beneficiaries in exercise of the power in that behalf contained in sub-clause 2.4.2 of this clause;
2.4.2 power from time to time by deed naming the individual concerned to exclude from the Beneficiaries any member for the time being of the Beneficiaries either permanently or for any period specified by the Trustee in such deed;
PROVIDED THAT these powers shall not be exercised in such a way as to cause this Trust to cease to be an Employees’ Share Scheme as defined in Section 743 of the Companies Act 1985.
....
3. TRUST PENDING OF APPOINTMENT
UNTIL and subject to and in default of any appointment under Clause 2
3.1 THE Trustee shall pay or apply the income of the Trust Fund to arise before the Distribution Date to or for the benefit of all or such one or more of the Beneficiaries exclusive of the other or others of them as shall for the time being be in existence and in such shares if more than one and in such manner generally as the Trustee shall in its absolute discretion from time to time thinks [sic] fit.
....
4. ULTIMATE DEFAULT TRUSTS
SUBJECT as above and if and so far as not wholly disposed of for any reason whatever by the above provisions the capital and income of the Trust Fund shall be held in trust for such charity or charities as the Trustee shall in its absolute discretion determine.
....
8. DISCRETIONARY NATURE OF THIS TRUST
THE provisions of this Trust shall not form part of
any Contract of Employment of any Beneficiary and shall not confer upon any
person any legal or equitable rights whatsoever (except as discretionary
objects of this Trust) and no Beneficiary ceasing to hold the office or
Employment by virtue
of which he is a Beneficiary shall be entitled to any
compensation for any loss of any right or benefit or prospective right or
benefit under this Trust Deed which he might otherwise have enjoyed.”
10. The First Trust Deed also contained the following relevant definition:
“The Beneficiaries |
|
The present and future employees or former employees of the Company or any company resulting from the amalgamation or reconstruction of the Company and any other individual named as a member of the Beneficiaries by the Trustee in exercise of the powers contained in this Deed from and after the date of such nomination” |
11. The evidence of Mr Angrave (which we accept) was that the No. 1 Trust was established for the purpose of facilitating schemes to encourage employee share ownership in Holdings. Its creation was prompted by the wish of three significant shareholders to dispose of their holdings (some 800,000 shares, amounting to some 20% of the total issued share capital of Holdings) in 1992. We were not provided with details of those schemes, but there were at least three:
(1) A Revenue-approved profit sharing “buy one, get one free” scheme whereby all employees could buy shares in Holdings and be allocated an equal number of free shares from the No. 1 Trust;
(2) Two share option schemes (which appear to have been used only for more senior employees) whereby the No. 1 Trust granted share options over existing issued shares of Holdings held within the trust. One of these schemes was approved by the Inland Revenue, the other was not; and
(3)
A share dealing facility, whereby employees were given an opportunity
once a year to buy and sell shares in Holdings at a valuation
fixed on an
annual basis, with the No. 1 Trust standing as buyer of last resort if the
numbers of shares to be sold exceeded the number which employees wished to buy.
14.
Part of HMRC’s
argument was that the money distributed by the No. 1
Trust after the sale of Holdings represented, to a significant extent, money
that had been contributed to the trust by the Appellant. We attempted to
assess the strength of this argument by reference to the information available
to us as to the amounts and sources of the money received by the No. 1 Trust
over its lifetime.
15. The money which the No. 1 Trust received came from several different sources:
(1) It took out a loan facility from a bank (guaranteed by Holdings and/or the Appellant) of £1,500,000, of which it drew down £895,000 at an early stage to “kick start” the trust fund. As Mr Angrave told us that the shares were worth £1.06 at the time the No. 1 Trust was established, we infer that the bank loan was the source of funding to buy the initial 800,000 shares when the No. 1 Trust was set up (as the purchase price for the shares would have been £848,000 plus stamp duty and fees).
(2) It is clear that the Appellant and Holdings also contributed to the No. 1 Trust; we were given a list of contributions over the period from 7 April 1992 (when an initial £100 was contributed as contemplated in the No. 1 Trust Deed) up to 7 December 2001 (since when, we were told, no further contributions had been made). The total contributions in that list were £1,780,823.57.
(3) It is also clear that the No. 1 Trust received cash payments from employees who bought shares from it (either as part of the approved profit sharing scheme or in the annual dealing window) or who exercised options over shares granted by it. We have no details of the amounts of these payments.
(4) The No. 1 Trust also received dividends on the shares it held.
(5) Clearly when Holdings was sold, the No. 1 Trust received a large payment (partly in cash but largely in loan notes) on the sale of the shares it sold.
16.
We had very
little information to help us form a
view
on the amounts
that had been received under these
various
headings, but the following items
were provided, which enabled us to obtain a broad grasp of the picture.
19.
It was quite impossible to reconstruct from the information we were
given even an approximate view
of what proportion of the overall cash received
by the No. 1 Trust over its lifetime had been paid by way of contribution (as
opposed to dividend) from the Appellant or Holdings.
22. The key details are set out in paragraphs 5 to 9 of the statement of facts at [6] above.
27.
Mr Angrave and Mr Roxborough gave evidence (which we accept) that they
were very
clear in their minds about the distinction between their roles as
directors in the Appellant and Holdings on the one hand and as directors of the
No. 1 Trustee on the other. When discussing trust business, they met away from
the Appellant’s premises.
28.
In the early part of 2002, the four directors of No. 1 Trustee discussed
various
options of what to do with the funds in the trust. They considered
alternatives other than payment to the employees. But in the end they decided
that the only satisfactory solution was a cash-based system.
36.
In early 2002 a dispute arose with the Appellant’s auditors, who were in
the course of preparing its December 2001 accounts. They were seeking to argue
that the No. 1 Trustee and the No. 2 Trustee (with their respective assets)
should still be included in the group
for accounting purposes.
“Specific matters in relation to the Employee Benefit Trusts
We confirm, to the best of our knowledge and belief and having made appropriate enquiries of other directors and officials of the company’s[sic], the following representations in relation to the assets held in the Gardiner-Caldwell Employee Benefit Trusts (the trusts).
·
The trusts are entirely independent from the company and we
believe they exist solely to distribute the assets that have arisen from the
sale of the shares to Thomson Healthcare Plc;
·
The Group’s
directors have no control over the assets held in the
trusts;
·
The Group’s
directors will not seek to influence the trustees in
any way;
· The directors are of the opinion that there will be no direct future economic benefit to Gardiner Caldwell (Holdings) Limited or its subsidiary undertakings arising from the assets held in the trusts, and are not aware of any such benefit;
·
The Group’s
directors will continue to remunerate our employees
on a consistent basis as in prior years and will not rely on any distribution
from the trust in lieu of remuneration to employees;
· If requested by the trustees we will provide to them information concerning employees as at 28 December 2001, or persons who have left our employment prior to that date, sufficient to enable the trustees to make contact with the individuals involved and subject to legal requirements. We will not provide the trustees with information:
o Concerning employees whose first employment with us commenced after 28 December 2001
o Relating to any employees performance post the 28th December 2001
In our opinion, the future results of the Group
will not be
influenced by the decision of the independent trustees in how to distribute the
assets of the trusts.”
40.
The next set of payments was made in October 2003. Although PAYE was
deducted and accounted for, no Class 1 NICs were deducted or accounted for
(primary or secondary), relying on the decision in Channel 5 TV Group
Limited
v
Morehead (Inspector of Taxes) [2003] STC (SCD) 327, which was
handed down in May 2003 and subsequently widely publicised.
44.
The Appellant and HMRC
agreed to treat Mrs Adshead’s case as
representative of all the payments made in 2002-03 and 2003-04.
45.
On 13 November 2009, HMRC
issued a Notice of Decision addressed to the
Appellant (under its then name of
Knowledgepoint
360
Group
Limited). It read
as follows:
“My decision is that:
That Knowledgepoint
360
Group
Ltd is liable to pay primary
and secondary Class 1 contributions for the period 6th April 2003 to
5th April 2004 in respect of earnings of Mrs
V
M Adshead [NI
number given].
The amount Knowledgepoint
360
Group
Ltd is liable to pay in
respect of those earnings is [amount deleted].
The amount that Knowledgepoint
360
Group
Ltd has paid in
respect of those earnings is [amount deleted].
The difference is due to Class 1 contributions on payments made by bonus payments.”
47. There is a large measure of agreement between the parties as to the law to be applied.
“5 Gratuities and offerings
(1) A payment of, or in respect of, a gratuity or offering which satisfies either of the conditions in this paragraph.
(2) The first condition is that the payment –
(a) is not made, directly or indirectly, by the secondary contributor; and
(b) does not comprise or represent sums previously paid to the secondary contributor.
(3) The alternative condition is that the secondary contributor does not allocate the payment, directly or indirectly, to the earner.”
49.
The predecessor of this provision (which was to the same effect, and
nothing turns on the differences in the wording) was considered at some length
in the Channel 5 case. In that case, a venture
capitalist chose to pay
over some of its profit (earned on a sale of its investment in a company) to
the employees of the company after the sale had gone through. Its motivation
was that it had earned more than its target level of profit from the investment
and it wished to reward the employees of the company who had effectively
created that super-profit. It therefore asked the company’s chief executive to
decide how to allocate the payment it wanted to make, wishing the payment to go
to the people who had contributed most to the creation and
value
of the
company. The chief executive consulted with the company’s board and proposed
to them that all the company’s employees should share in the windfall, and some
of it should be given to charity. The board agreed and the
venture
capitalist
was told of the proposal, which delighted it – it had expected the windfall
would probably be shared amongst a few senior managers. In due course the
payment was made by the
venture
capitalist to a firm of solicitors for onward
distribution by them to the employees. These payments came as a complete
surprise to all concerned.
54.
The Special Commissioners in Channel 5 considered the meaning of
the word “gratuity” at some length and finally suggested a definition of it,
with which the parties in the current appeal both agree. We therefore adopt it
(though we feel it might usefully be amended very
slightly in the interests of
clarity– see [76] below). It reads as follows (at [41]):
“... a gratuity means a voluntary
payment given in return for
services rendered where the amount of the payment depends on the donor and
where there is no obligation on the part of the donor to make the payment.”
55.
It can readily be seen that this definition itself breaks down into four
elements, the first and last of which appear to cover the same point: it is difficult to see what is added to the concept of “voluntary
payment” by the phrase
“where there is no obligation on the part of the donor to make the payment”.
We therefore consider this to be a single composite element of the definition.
The second element is the concept of “given in return for services rendered”;
and the final element is “where the amount of the payment depends on the
donor”. We consider each of the elements in turn, addressing the arguments
raised on them by the parties.
First element of “gratuity” definition – “Voluntary
payment/no
obligation on the part of the donor to make the payment”
56.
Ms Choudhury makes the simple observation that the No. 1 Trust is a
discretionary trust and that these payments were made by its trustees entirely
voluntarily.
They were under no obligation to make payments to Mrs Adshead or
anyone else. The trustees’ only obligation was to exercise their
very
wide
discretion in an appropriate manner. If it came to it, they were free under
the terms of the trust to pay all the trust assets over to a charity of their
choice.
57.
Mr Williams, on the other hand, submitted that this was too narrow a
view
of the situation. He made a number of points in reply, which we have
analysed down into four basic submissions.
58.
His first submission was this. The background was that the No. 1 Trust
was set up with the purpose of providing incentives to employees, and in
reality it would be bound to distribute its assets to those employees. He
pointed out that the incentive for employees in such arrangements lies not
really in “pride of ownership” of company shares, it lies in the prospect of
cash payments on a sale of the company if things go well. This must always be
in the contemplation of those who design, run and participate in employee share
schemes, he argued, and this means that when those schemes do mature into
significant cash proceeds (as here), those cash proceeds were impressed with
the character of the “incentive” that generated them and could not be regarded
as truly voluntary
payments.
59.
His second submission was that the trustees were (or were controlled by)
individuals who were or had been directors of the Appellant, who could be
relied on to ensure that the monies were disbursed in line with the general
purpose of the trust. As a result, its payments were not really voluntary,
they should be seen for what they were, which was a working out of the No. 1
Trust’s main object of providing an incentive (ultimately in the form of cash
payments) to the employees.
60.
His third submission was this. He pointed to the fact that eligibility
to participate in each payment from the No. 1 Trust was dependant on continued
employment by the Appellant at the time of the payment in question. This
created, he argued, a clear “incentive” flavour to the payment which was
inconsistent with an entirely voluntary
payment.
62. We take Mr Williams’ submissions in turn.
63.
His first submission has some weight, but we do not accept it. The
question we are here concerned with is whether the payments to Mrs Adshead
(and, by extension, the payments to all the other employees) were “voluntary”
and made in a situation where there was no obligation on the part of the No. 1
Trust to make them. Mr Williams’ submission does not really address this point
analytically, it essentially says that it is artificial to speak of payments
being “
voluntary”
or to say that they were made in a situation where there was
no obligation to make them in the context of payments out of what is
essentially an employee incentive scheme.
65.
And crucially, even if Mr Williams’ assertion broadly to the effect that
“these funds were always going to be paid out to the employees” is accepted, we
must remember that each payment must be considered individually to see whether
it satisfies the “gratuity” test – and it is quite clear that the trustees have
exercised their discretion separately and individually in relation to the
amount actually paid to each employee. Each individual employee could have
received either nothing at all, a very
large amount of money, or somewhere in
between. To the extent that the trustees have exercised their discretion to
fix the payment of each employee at what they consider the correct point in
this continuum, we consider they have made a
voluntary
payment to that employee
in a situation where there was no obligation to make that payment. Taking Mrs
Adshead’s situation, there is no doubt that the trustees could have decided to
leave her off the list of payees altogether, without her being able to raise
any kind of lawful complaint; by instead allocating a large payment to her,
they have undoubtedly acted
voluntarily,
even if one accepts that they were
under some kind of obligation to distribute all the trust assets to the
employees as a class. Similar reasoning applies to the payment actually made
to each employee.
66.
We turn now to Mr Williams’ second submission. We consider it is really
an extension or particularisation of his first submission. We are quite
satisfied that the four individuals in question exercised fully independent
discretion in deciding on the distributions to be made, and in doing so they were
deciding on payments which were voluntary
and made in a situation where there
was no obligation to make those payments. In a situation where (as we have
found) the individuals in question acted independently of the Appellant and
Holdings in reaching their decisions, we do not consider that the fact that two
of those individuals were also directors of the Appellant and Holdings makes
any difference to our
view
on Mr Williams’ first submission.
67.
As to Mr Williams’ third submission, we agree that the creation of a
link between receipt of the payments and continued employment with the
Appellant is an unexpected element of a gratuity, and we have some misgivings
about it. Mr Angrave explained away the link as a mere administrative
convenience – there could be all sorts of difficulties about tracing former
employees and making payments to them if they were no longer in the employment
of the Appellant and this condition did away with those difficulties. When
considered in the context of the hope of further payments which would have been
engendered in the employees when they received the initial letter informing
them of the “continuing employment” condition, this comes perilously close, in
our view,
to undermining the “
voluntary”
status of the second and subsequent
payments (including the payments the subject of this appeal).
“... it is envisaged that overall payments will be made in a number of stages”
“... overall payments will need to be made on a staged basis into the future. Indications of the projected cash flows suggest that each overall total anticipated but not guaranteed payment will be split into three equal staged payments. It is the intention of the Trustees to arrange that the first staged payment will be made by 31st October 2002 subject to all related administrative procedures being complete satisfactorily. It is anticipated (but not guaranteed) that two further equal staged payments should be made within 2 years of the first staged payment.”
69.
Against this, however, the letter in question made it equally clear to
the employees that even if they continued in employment, the making of any
further payment by the No. 1 Trust was still very
much discretionary: it included, for example, the following text:
“At this point we are legally obliged to state clearly that this information can only provide an indication of possible future intentions regarding the relevant payments. It needs to be made clear that you must not in any way assume that the possible future intentions described are fixed and confirmed at this stage.”
“...please be mindful that this can only provide an indication of possible future intentions and you should not assume that these are fixed and confirmed at this stage.”
70.
We find the point finely balanced, but in the end we have reached the
view
that the linkage between continued employment and possible
eligibility for further payments is not sufficient to displace our
view
that
the payments remained “
voluntary”
and made in circumstances “where there is no
obligation to make the payment”.
71.
We turn now to Mr Williams’ fourth submission. We accept Mrs Adshead’s
evidence that she was completely unaware of the possibility of the No. 1 Trust
making cash payments until Mr Angrave briefed her on it shortly before the Mere
Golf Club staff meeting in November 2001. At that stage it was still only
presented to her and the rest of the employees as a tentative possibility. We
do not see how this could be regarded as engendering an expectation of an
incentive payment with a view
to inducing Mrs Adshead (or any other employee)
to continue in employment and work to make the sale a success. By the time
they became aware of the possibility, the sale was only a few days short of
being agreed. There was no indication given to employees as to how the
payments might be structured (for the
very
simple reason that no thought had
yet been given to that question). There was at that stage no hint of any
“continuing employment” condition applying to the calculation of the payments.
So whilst the employees will have taken a general good feeling and a hope for
some future payment away from the meeting, we do not consider they would have
felt any expectation of, still less any entitlement to, any payment. In short,
we find that they had been led to expect there was some possibility of a
gratuity of some kind in connection with their past service and nothing more.
Second element of the “gratuity” definition – “Given in return for services rendered”
73.
Ms Choudhury submitted that the position in this case was on all fours
with the Channel 5 case. In that case, the Special Commissioners held
that the payments were “gifts given in return for the fact that the employees
had contributed to the creation and increase in value
of the appellant, which
became a successful investment for the investor”.
75.
He also submitted that, once again, the nature of the No. 1 Trust as
payer should be taken into account, and it materially changed the nature of the
payment. He said that the increase in value
of the No. 1 Trust’s investment in
Holdings shares was not analogous to that in the Channel 5 case because
“here the whole purpose of the trusts and their investments were to benefit the
employees”. In the terms of this element of the “gratuity” definition, we take
him as submitting that there was no element of reciprocity between the payer
and the payee, no element of payment for services which were of benefit to the
recipient of those services; rather there was a degree of circularity (a word
which he used several times) – the efforts of the employees (including Mrs
Adshead) were self-serving in that they simply resulted in an increase in
value
of an asset which they were destined to share in at some future time by way of
cash payment.
77.
His second submission carries a little more weight. We agree that, as a
general proposition, there is some difference in nature between an employee’s
service which enhances the value
of a truly independent investor’s shareholding
in the employer and one which enhances the
value
of a trust fund which is
established to provide benefits to employees (including that employee in
particular). In some sense, it can be said that in the latter situation the
employees are simply working to enhance the
value
of an asset in which they
have an interest, rather than working for the benefit of a truly independent
third party who subsequently makes a payment as a mark of his appreciation.
78.
But we still consider that his submission misses the point, for two
reasons. First, the phrase “given in return for services rendered” does not
necessarily imply that a careful analysis should be made of what services have
been rendered and to whom; all that is necessary is to establish that a payment
has been made because the recipient has performed some service for which the
payer wishes to show approval or gratitude (in contrast to the situation where
the payer makes a completely unsolicited payment out of the blue by reason, for
example, of sympathy, admiration or natural love and affection). In the Channel
5 case itself, the Special Commissioners (at [44]) effectively agreed as
much when they said that the payments were “gifts given in return for the fact
that the employees had contributed to the creation and increase in value
of the
appellant” – there is no hint in that key conclusion that the Special
Commissioners were concerned with a careful analysis of precisely what services
the employees had performed and for whom, nor did they consider that question
at length anywhere else in their decision.
79.
We are quite satisfied that in this case, the No. 1 Trust (and its
trustee/directors) made the payments they made to Mrs Adshead because they
wished to show approval of her efforts. They applied their minds carefully to
the amount to be paid to her, to reflect the value
of her efforts. Similar
observations apply to all their payments to employees. It matters not, in our
view,
that they were acting as trustees of an employee benefit trust when doing
so. They were not bound to pay any particular amount (or indeed any amount at
all) to any particular employee. They could have decided that the good price
achieved on the sale of Holdings was attributable to market conditions or other
factors entirely beyond the control of the employees and therefore it would be
more appropriate to pay the cash to charity than distribute it amongst the
employees. They did not do so, but it is in our
view
misconceived for
HMRC
to
argue that the payments received by each of the employees were little more than
their entitlement under an incentive scheme.
80.
Second, it is clearly the state of mind of the payer and not of the
payee which is relevant to deciding whether a payment is “given in return for
services rendered” (or, in our preferred formulation, “given in recognition of
services rendered”). By arguing that the No. 1 Trust was not truly independent
of the Appellant in making decisions about payments, Mr Williams has effectively
accepted as much. From the careful way in which the four individuals concerned
went about the task of deciding how to distribute the funds in the No. 1 Trust,
we are quite satisfied that they were intending that the payments made should
represent individualised expressions of approval for the efforts put in by the
recipients in contributing to the overall value
of Holdings. As such, we are
satisfied that each payment made was “given in return for services rendered”
(or, on our preferred formulation, “given in recognition of services rendered”)
by the individual employee concerned.
Third element of the “gratuity” definition – “Where the amount of the payment depends on the donor”
83.
Mr Williams pointed to the fact that two individuals who were still at
the time executive directors of the Appellant and Holdings (Mr Angrave and Mr
Roxborough) were crucial members of the body of four individuals who had
effectively decided on the allocation of the payments. Bearing in mind that
one of the other two was effectively a non-executive professional adviser, the
views
of Mr Angrave and Mr Roxborough were effectively determinative. He
submitted that this must cast some doubt on whether the amounts of the payments
had been truly determined independently of the Appellant.
92.
Mr Williams’ submissions on this issue all revolved around the central
point of independence. He essentially argued that in a situation where the
allocation decision was being taken by four individuals, two of whom were
current serving directors of the Appellant, one of whom was a professional
trustee whose role was mainly the giving of generic legal advice, and the other
of whom was the retired chairman of the Appellant’s parent company, the only
realistic view
of the situation was that the Appellant was effectively making
the allocation. This was reinforced by the fact that the individuals had based
their scheme of distribution
very
heavily on the Appellant’s own bonus
structure.
94.
At all times relevant to the allocation decisions, there were two
trustees of the No. 1 Trust: Mr Gardiner (the retired chairman of the Appellant
and Holdings) and the No. 1 Trustee (see paragraph 9 of the statement of facts
at [6] above). In strict legal terms, they would have had to act unanimously
and therefore either Mr Gardiner or the No. 1 Trustee could have vetoed
any
proposed scheme of distribution. Unanimous agreement to the appointment of a
new trustee would also have been required, so this deadlock could not have been
broken in that way. The No. 1 Trustee was of course controlled by its
directors, a majority of whom (Mr Angrave and Mr Roxborough) were current
directors of Holdings and the Appellant. The two issued shares of No. 1
Trustee were jointly held by Mr Hall (the solicitor) and Mr Gardiner and
therefore it could be expected that Mr Gardiner would have had the power to
remove Mr Angrave and Mr Roxborough as directors of No. 1 Trustee and appoint
his own nominees in their place. Thus the most likely means of breaking a
deadlock would have involved Mr Gardiner (the retired chairman) taking control.
96.
We find that all four of the individuals concerned were extremely
careful to distinguish in their own minds the role and responsibility which
they had in relation to the trust from their other roles and responsibilities
(especially Mr Angrave and Mr Roxborough). We find that the use of the
Appellant’s bonus model as the starting point for the allocation was entirely
logical, and it was just that – a starting point. It is clear that Mrs
Adshead, for example, received much more than she would have done purely on the
basis of the model. It is also clear that payments of £200 were made to
numerous employees who would not have qualified for any payment if the
Appellant’s bonus model had been used in a mechanical fashion. An extra factor
– length of service up to the sale – was added into the equation. All these
are very
clear indicators that the trustees did indeed exercise their own
independent judgment and not simply go along with the Appellant’s
views
on the
allocation. We also find that there was nothing in Mr Williams’ submission
about the consultation with Mr Noble. We find that the consultation connoted
no element of actual involvement in the decisions by Mr Noble. The payment structure
was effectively presented to him as a fait accompli (as was permitted under the
terms of the relevant deed) and he accepted it as such.
100. The condition reads as follows:
“The first condition is that the payment –
(a) is not made, directly or indirectly, by the secondary contributor; and
(b) does not comprise or represent sums previously paid to the secondary contributor.”
105.
But the situation in this case is more complex. The various
sources of
funds for the No. 1 Trust are summarised at [15] above.
106.
Before any payment from the No.1 Trust to employees can be said to be
paid indirectly by the Appellant, it must be shown that the money actually
originated from the Appellant (or from elsewhere but at the Appellant’s
ultimate expense). In looking at the various
sources of the trust’s money
which it paid out to the employees, a number of points arise:
(1)
There were clearly £1.8 million of contributions from the Appellant and
Holdings (given the close relationship between Holdings and the Appellant, we
do not consider it necessary to differentiate between them for this purpose –
no evidence was put forward to persuade us that any part of the contributions
on the list we were provided with should be excluded from reckoning for these
purposes.) On any view,
this money can be regarded as originating from the
Appellant.
(2) The bank loan of £895,000 that was used to “kick-start” the trust had been repaid in full before any distributions were made to employees by the trust, so this money can have formed no part of the sums distributed.
(3)
The No. 1 Trust has also received dividends on the shares it has held.
Though these will have been shares of Holdings rather than the Appellant, we do
not differentiate between them for this purpose (and in any event we were told
that the Appellant was the main trading company in the group,
so we assume the
profits to fund those dividends will have originated wholly or mainly from the
Appellant). No evidence was put before us (except in relation to 2000-01) as
to the amounts of dividend received.
(4) We have no evidence of the aggregate amounts of the payments received from employees, except that we know they will have paid approximately £1.9 million to the trust on exercise of share options in the context of the sale. That money clearly originated from outside the Appellant.
(5) The £4.12 million cash and loan notes received by the trust on the sale, to the extent comprised in the ultimate payments to employees, also clearly originated from an outsider (in this case, Thomson).
“the trusts were created expressly for the purpose of benefiting the employees, so that the payments by the trustees were the fulfilment of the employer’s scheme to reward its employees. In these circumstances it is reasonable to conclude that the payments were made indirectly by the employer.”
110.
We cannot agree with Mr Williams’ submission. The question we have to answer
is whether the payments to Mrs Adshead (and, by extension, the other employees)
were made indirectly by the Appellant. In a situation where the Appellant had
contributed £1.78 million gradually over a period of nearly nine years (the
vast majority of it more than three years before the sale), we find it
impossible to agree that it had thereby indirectly made payment of (in
aggregate) a much larger sum, including the payment to Mrs Adshead the subject
of this appeal.
115. The appeal therefore succeeds.