Rangers new owners 'appreciate risk of insolvency' Published duration 23 September 2011

image caption Rangers is contesting a £49m bill from HMRC

A judge who froze £480,000 of Rangers assets has said the club's new owner recognises it could go under if it loses a disputed £49m tax claim.

The detail emerged in a published opinion from judge Lord Hodge, who is hearing former chief executive Martin Bain's case for unfair dismissal.

The judge said the takeover deal for Rangers had been structured to protect the new owner if the tax case was lost.

He said this was "an appreciation...of a risk of insolvency".

Mr Bain is pursuing a £1.3m damages claim against Rangers at the Court of Session in Edinburgh.

He raised the claim alleging breach of contract following the takeover at Rangers FC by venture capitalist Craig Whyte from former owner Sir David Murray.

'Not persuaded'

On 13 September, Lord Hodge granted a warrant to ring-fence £480,000 of the Ibrox club's assets, pending the outcome of Mr Bain's case, after deciding there was "real and substantial risk of insolvency".

image caption Martin Bain is suing Rangers for unfair dismissal

This centred on the, as yet undecided, outcome of a disputed tax claim from Her Majesty's Revenue and Customs, which totals £49m in tax and penalties.

In his written opinion, Lord Hodge stated: "I am not persuaded on the material placed before me that Rangers is presently insolvent on either of the tests of practical insolvency or absolute insolvency."

The judge, however, said he did believe there was a genuine threat to the club from the tax case and believed the new owner fully recognised this threat.

Lord Hodge referred to a circular sent to shareholders of Rangers on 3 June 2011.

He stated that this document "disclosed that The Rangers FC Group Limited (formerly Wavetower Limited) had purchased 85.3% of the shares of Rangers for the cash sum of £1 and had given certain undertakings".

Lord Hodge said The Rangers FC Group Limited had taken over Rangers' £18m indebtedness to the Lloyds Banking Group, "and obtained an assignation of the bank's securities over Rangers' assets".

According to the circular, this debt would be waived if Rangers had "not suffered an insolvency event within 90 days of the club's appeal in relation to the tax claim".

The judge noted that until the case was settled, and the debt was waived, all investment in Rangers by The Rangers FC Group Limited would be treated as increasing the club's debt to it.

Lord Hodge concluded that "this carefully structured deal" through which The Rangers FC Group Limited has secured a charge over Rangers assets and made the waiving of the club's debt conditional on a positive outcome to the tax case, "shows an appreciation by The Rangers FC Group of a risk of insolvency resulting from that claim".

The judge added: "When I asked Mr Napier (Rangers QC) if he could clarify Rangers' position in relation to the HMRC claim for £49m...he was not able to assist as he had no instructions in relation to that matter.

"I must therefore treat Mr Bain's assertions as to the extent of HMRC's claim as uncontradicted, although I acknowledge that the claim itself is the subject of an appeal by Rangers."

Elsewhere in the opinion, Lord Hodge noted that Rangers pointed out that Mr Bain had a 39-month contract agreed with the club in September 2009.

The club's QC said that a long-term service contract of this length was prohibited under the Companies Act 2006 unless it had been approved by a resolution of the members of the company.

Mr Bain's QC said his client did not know whether the members of Rangers had approved the contract.