If you are looking for investment and wish to know more about EIS, then this article may be for you. It does go into more detail than our typical articles because the conditions are so extensive. So grab a coffee and take notes – if you are considering EIS or SEIS you will need to be sure you tick all the boxes.
Enterprise Investment Scheme (EIS)
This scheme is intended to help small, unquoted trading companies to raise finance, by encouraging individuals to subscribe for shares. Its main features are as follows:
Relief
- Income tax relief at 30% 1 on amounts subscribed for qualifying EIS shares
- No chargeable gain arises on disposal of the shares
- Amounts invested may be used to defer tax on other chargeable gains
Note :
1. Income tax relief was given at 20% for shares issued before 6 April 2011
UPDATE 23/03/2015
EIS and VCT: rules changes announced
The Chancellor has announced that the EIS and VCT rules will be changed “to ensure they are compliant with the latest state aid rules and increasing support to high growth companies”. No details are available as yet.
Budget announcement 18 March 2015
This article is set out in 3 sections
- Conditions for relief; these are quite extensive and must be met for certain qualifying periods.
- Using the relief
- Withdrawal of relief
- Conditions for relief
The requirements for EIS income tax relief are that a subscription must be made:
- by a qualifying investor
- for eligible shares
- in a qualifying company
In addition, there must be no disqualifying arrangements in place.
A breach of any of the conditions may lead to relief being withdrawn. Special provisions apply to subscriptions through an EIS fund.
For 2012/13 onwards, the maximum subscription by an individual in one tax year for which income tax relief may be given is £1 million.
HMRC has issued a form to be used by companies seeking assurance in advance that a share issue will meet the qualifying conditions for the EIS.
Periods A, B and C
The EIS is subject to many conditions, most of which must be fulfilled throughout one of the following periods:
| Period | Starts | Ends |
| Period A | Date of incorporation of the company 1 | Immediately before the termination date 2 in relation to the shares |
| Period B | Date of issue of the shares | |
| Period C | 12 months before the date of issue of the shares | |
| Note : 1. If the company was incorporated more than 2 years before the date of issue of the shares, Period A starts 2 years before the latter date. 2. The termination date is the later of:
Note that the second condition does not apply to the SEIS. |
||
Disqualifying arrangements test
There is an overriding requirement that the shares are not issued in connection with disqualifying arrangements. Arrangements are disqualifying if they are entered into with the purpose of obtaining tax relief for any person, and either or both of the following conditions apply:
- all or most of the money raised is paid to, or for the benefit of, a party to the arrangements (or a person connected with such a party); or
- in the absence of those arrangements, it would be reasonable to expect that the business would be carried on as part of another business by a person who is a party to the arrangements or a person connected with such a party.
Qualifying investor
The requirements for a qualifying investor are shown in the following table. The investor must:
| Requirement | Qualifying period 1 |
| Be an individual | None |
| Have subscribed for the shares for genuine commercial reasons and not as part of a tax avoidance scheme | None |
| Not be connected with the issuing company | Period A |
| Not receive a linked loan | Period A |
| Note : 1. The condition must be satisfied throughout the period indicated. |
|
- Any subscription etc by a nominee is treated as that of the individual. Shares held in a bare trust (A bare trustee is one who holds property to which another person is absolutely entitled. ) for two or more individuals are deemed to belong in full to all the beneficiaries (no particular shares are deemed to belong to a particular individual) and each beneficiary is deemed to have contributed an equal amount.
- EIS relief is not available where the investment is made as part of a reciprocal arrangement in order to meet the conditions of the scheme. For example, EIS relief will not be available for an individual who is connected with company B but not with company A, and who subscribes for shares in company A on the condition that another person, who is connected with company A but not with Company B, will subscribe for shares in company B.
Connected persons
A person is connected with the issuing company if that person (or an associate):
- is an employee, director or partner of the company, or a subsidiary or partner of the company;
- has control of the company; or
- has a substantial interest in the company.
Connected persons explained:
- For the purposes of EIS relief, a person is associated with:
- a relative or (business) partner (Relatives include: spouse/civil partner; parent; grandparent; children; grandchildren; and brother or sister, with the exclusion of brothers and sisters);
- the trustees of a settlement of which the investor or a relative was the settlor; and
- the trustees or personal representatives of any trust or estate holding shares in which the investor has an interest.
- For the purposes of point a. above, directorships may be ignored where the director is either unpaid or a “business angel”.
A director will be deemed to be unpaid where the only payments received comprise:
- payment or reimbursement of expenses allowable for employment income purposes;
- normal commercial payments in respect of interest on loans, rent for the property, supplies of goods and dividends; or
- reasonable remuneration provided to the director (directly or indirectly) for services in the course of a trade or profession.
It is HMRC’s view that a company secretary who receives no payment, has no benefits in kind or employment contract and carries out only company secretarial duties is not an employee for EIS purposes.
A business angel is a term commonly used to describe a person, unconnected with the company, who is prepared to provide finance and expertise to the company. A subscription by a business angel will qualify for relief if, at the time of the subscription for the EIS shares, the business angel was never:
- connected with the issuing company; or
- involved in the trade of the issuing company (either alone, in a partnership or as a director or employee).
A business angel who subsequently becomes a paid director of the company, or of a subsidiary or partner of the company, will continue to qualify for relief provided any remuneration received is reasonable in relation to services performed. Any further subscription after becoming a paid director will still qualify for EIS relief provided the shares are issued within 3 years of the last issue of EIS or SEIS shares received before becoming a paid director (and provided the angel is not otherwise connected with the company, for example by holding a 30% interest).
- For the purposes of point b . above, a person has who can secure the conduct of a company’s affairs in accordance with his or her wishes will be considered to control the company. Control can be conferred by a personal shareholding or voting rights, or those of associates, or rights under the Articles of Association or another regulatory document.
- For the purposes of point c . above, a person has a substantial interest in a company if that person (either alone or with associates) has possession of, or is entitled to acquire, over 30% of the company’s or any 51% subsidiaries:
- issued ordinary share capital;
- voting rights;
- issued share capital; or
- net assets on a winding up (directly or indirectly).
In this context, a subsidiary company means a company which at any time in the period beginning on the incorporation of the company (or, if later, 2 years before the share issue) and ending on the termination date is a 51% subsidiary.
For this purpose “issued share capital” refers to the nominal value rather than the subscribed value of the shares. HMRC v Taylor & Haimendorf [2010]
- For shares issued before 6 April 2012, a person’s holding of loan capital in the company was also taken into account. The 30% limit then applied to the total of a person’s issued share capital and loans made to the company, rather than being applied to each category separately.
Linked loan
A linked loan is any loan made to the investor or an associate which would not have been made or would not have been made on the same terms if the investor had not subscribed or proposed to subscribe for the shares in question.
A loan includes the giving of any credit or the assignment of a debt.
Eligible shares
The shares must be newly issued, fully paid up ordinary shares acquired by subscription for cash.
The purpose of the share issue must be to raise money for a qualifying business activity.There is also a general requirement that shares must be issued for genuine commercial purposes and not as part of a tax avoidance scheme. This is additional to the disqualifying purpose test.
Shares are not eligible if, prior to the termination date, they carry present or future:
- preferential rights to dividends (but see below);
- preferential rights to assets on a winding up; or
- rights to redemption.
For shares issued on or after 6 April 2012, a preferential right to dividends does not make the shares ineligible unless:
- the amount or timing of the dividend depends on a decision of the company or any other person; or
- the rights are cumulative.
For the shares to be eligible, there must also be no pre-arranged exits, defined as any arrangements:
- for disposal of the shares;
- for the cessation of the trade or disposal of the company’s assets; or
- having as the main purpose the protection of the shareholder from the normal risks of investment.
Funds raised
With effect from 6 April 2012, the amount which may be raised by the company through risk capital schemes in the year ending on the date of issue of the shares must not exceed £5 million. For this purpose, risk capital schemes include the EIS, VCT and SEIS, the Corporate Venturing Scheme, and any other EU-approved risk capital schemes.
All of the money (or all but an insignificant amount) raised by the issue of shares must be used (by the company or its qualifying 90% subsidiary) for the purposes of the qualifying business activity for which it was raised by the later of:
- 2 years from the date of the share issue; or
- 2 years from the commencement of the trade.
The acquisition of shares or stock does not of itself constitute use for a qualifying business activity.
- In relation to shares issued before 6 April 2012, the limit on the amount of capital raised was £2 million.
- If the company has previously raised capital through an issue of shares under the SEIS, at least 70% of the funds raised by that issue must have been spent on a qualifying purpose before the new shares can qualify for the EIS.
Qualifying company
The company must satisfy two sets of conditions:
- one set at the date the shares are issued; and
- a further set throughout Period B.
Conditions to be satisfied at the date of issue The company must:
| Requirement |
| Be unquoted 1 (and there must be no arrangements in place for it to cease being so) |
| Not exceed a maximum permitted level of gross assets and number of employees |
| Not be in financial difficulty 2 |
| Note : 1. Shares on the Alternative Investment Market (AIM) and the PLUS Quoted and PLUS Traded Markets are not considered to be quoted for this purpose. 2. Financial difficulty is defined by the EC Guidelines on State Aid for Rescuing and Restructuring |
Conditions to be satisfied throughout Period B The company must:
| Requirement |
| Have a permanent establishment in the UK |
| Exist wholly for the purposes of carrying on one or more qualifying trades, or be the parent company of a trading group |
| Carry on a qualifying business activity |
| Control no non-qualifying subsidiaries |
| Have no property managing subsidiary that is not a qualifying 90% subsidiary |
| Be neither the 51% subsidiary of another company nor controlled by another company |
Maximum size The company must not exceed the following size limits:
| Requirement 1 | |
| Maximum number of employees 2 | 250 |
| Maximum gross relevant assets 3 immediately before the investment is made | £15 million |
| Maximum gross relevant assets 3 immediately after the investment is made | £16 million |
| Note : 1. These limits apply to EIS shares issued on or after 6 April 2012 and VCT target company shares issued on or after 19 July 2012. 2. Employee includes a director but does not include an employee on maternity or paternity leave or a student on vocational training. 3. Relevant assets are the assets of the company (or group, where appropriate, ignoring intra-group holdings and obligations) calculated as the aggregate of the assets which would be shown on a balance sheet prepared to that date, without any deduction for liabilities. |
|
Permanent establishment
A company has a permanent establishment in the UK if (and only if):
- it has a fixed place of business in the UK through which the business of the company is wholly or partly carried on; or
- an agent acting on behalf of the company has the authority to enter into contracts on behalf of the company and habitually exercises that authority in the UK.
The activities carried on at the fixed place of business or by the agent must, when considered in relation to the company’s business as a whole, have more than a simply preparatory or auxiliary character (such as mere storage of goods).
A company does not have a permanent establishment in the UK simply because:
- it carries on business in the UK through an independent agent or a broker; or
- it controls a UK-resident company or a company carrying on business in the UK (whether through a permanent establishment or not).
Qualifying trades
A qualifying trade means a trade on a commercial basis with a view to making a profit.
A company is the parent company of a trading group when it has only qualifying subsidiaries. A qualifying subsidiary is:
- a qualifying 51% subsidiary;
- a qualifying 90% subsidiary;
- a qualifying 90% subsidiary of a 100% subsidiary; or
- a qualifying 100% subsidiary of a 90% subsidiary.
To be a qualifying subsidiary, the subsidiary must either:
- carry on the EIS trade or research and development during the period beginning on the date of issue of the shares and ending on the termination date; or
- be a property management subsidiary.
If the company carries on certain excluded activities, and they comprise more than 20% of its trade, the trade is non-qualifying.
- If the share issue takes place before the trade commences, the company must be prepared to trade and intend to begin trading within 2 years of the date of issue. HMRC does not consider that preliminary activity, such as raising capital or market research to establish whether a trade would be successful, constitute “preparing to trade”.
- Excluded activities include :
- dealing in goods other than as part of a wholesale or retail distribution trade;
- property dealing and development;
- financial activities including, for example, debt factoring, dealing in commodities, futures and shares and insurance;
- leasing or hiring goods, including chartering ships (other than short-term hiring or chartering);
- receiving royalties and licence fees (for example green fees at a golf course) but excluding those attributable to film production, research and development and relevant intangible assets where the whole or greater part of the value of the asset was created by the company (or by a company that was a qualifying subsidiary at all times during which it created the asset);
- farming, market gardening, occupying and managing woodlands;
- The production of coal or steel;
- operating or managing hotels, nursing homes and residential care homes;
- providing legal or accountancy services;
- providing services for a trade carried on by another person (which consists substantially of non-qualifying activities) if the person has a controlling interest in both;
- the subsidised generation of electricity by solar or wind power (unless the activity commenced before 6 April 2012); and
- incentivised heat or fuel generation schemes, other than by community bodies or through anaerobic digestion methods (on or after 17 July 2014).
- In HMRC’s view, participation in a film co-production is not a qualifying trade for EIS purposes. By definition of a co-production, part of the trade is being conducted by a person other than the EIS company, and this is a breach of the EIS requirements.
UPDATE 15/12/14
EIS, SEIS and VCT: exclusion of energy-generating activities
In relation to shares issued on or after 6 April 2015 , certain companies (excluding community organisations) whose trade consists wholly or substantially of the subsidised generation of energy from renewable sources will cease to be eligible for investment under the EIS, SEIS or VCT. This exclusion will apply if:
- the activities involve anaerobic digestion or hydroelectric power; or
- the company enters into a Contract for Difference.
When the enlargement of the SITR receives EU clearance, community organisations will be similarly excluded from the EIS. However, eligibility for the SITR will be extended to allow activities for which a Feed in Tariff subsidy is receivable.
Draft Finance Bill 2015
Qualifying business activity
This means any of the following:
- carrying on a qualifying trade ;
- preparing to carry on a qualifying trade which begins within 2 years of the date of issue of the shares; or
- research and development which is intended to lead to the carrying on of a qualifying trade, or to benefit one which is already being carried on.
The qualifying trade or the R & D must be carried out for a minimum period of at least 4 months ending on or after the date of issue in order for the company to be a qualifying company.
This condition is not breached if the activity ceases before the minimum time because the company is wound up for genuine commercial reasons.
Control requirements
The company must not:
- control any non-qualifying subsidiaries;
- be the 51% subsidiary of another company; or
- be controlled by another company.
Any property managing subsidiary must be a qualifying 90% subsidiary of the company. A property managing subsidiary means a subsidiary whose business consists wholly or mainly in the holding or managing of land, or of any property deriving its value from land.
- Using the relief
Provided all the conditions are met, the individual may claim relief either on the self-assessment tax return or by submitting a claim accompanied by form EIS 3 which will be issued by the company.
There is no maximum investment limit, but the maximum amount on which relief will be given in one tax year is £1 million, whether the shares are issued in that year or a subsequent year (or if certain conditions are met, the investor may carry back relief to the previous year).
A claim for relief cannot be made until the trade has been carried on for 4 months and must be made within 4 years from the end of the tax year in which the shares were issued.
- For shares issued before 6 April 2012, there was a minimum qualifying subscription of £500.
- Relief will be denied where pre-arranged exit arrangements exist. This is not restricted to arrangements for the sale of shares but encompasses plans for the discontinuance of the trade, the sale of the assets, or where the investor has insurance, indemnities or guarantees against the risk of making the investment.
- To spread the risk, an individual may make investments through an approved EIS fund (a pool of monies from qualifying individuals). Relief is given to the contributors as if the shares were issued on the date the fund closed.
Mr A made the following subscriptions:
- £400 in B Ltd on 1 March; and
- £450 in C Ltd on 7 April.
The shares were both issued on 15 April. No relief is available as in each case the amount subscribed for is less than £500.
If the subscriptions had both been for B Ltd, relief would have been available as the total amount subscribed for shares was more than £500, even though the subscriptions made in each tax year were less than £500.
UPDATE 17/11/2014
Claims for EIS relief
The time limit for claiming EIS relief against income tax is 5 years from 31 January following the tax year in which the shares were issued, or are treated as having been issued if relief is carried back.
EIS relief is given as a tax reduction.
A restricted claim may be made where, for example, the personal allowance would otherwise be wasted.
Mr B subscribes for shares in A Ltd at a cost of £200,000. His tax liability for the year (before deducting double tax relief and the married couple’s allowance) is £38,250. EIS income tax relief would normally be £60,000 (£200,000 @ 30%) but is restricted to the income tax liability for the year. Mr B will therefore not get any double tax relief or married couple’s allowance for the year.
Carry back of relief
The full amount subscribed in a tax year may be carried back and treated as invested in the previous year. As with any claim for relief, the relief cannot exceed the income tax due for the year, so it may not be beneficial to carry back relief if there is insufficient income tax liability to absorb the relief.
The total amount of relief given in any year, including relief carried back, cannot exceed the maximum amount of EIS relief permitted for that year.
Attribution of relief to shares
The relief given for a tax year is allocated to the shares issued in that year. If there is more than one issue of shares which qualifies for relief, the relief is apportioned between them in accordance with the numbers of shares in each issue. This is of importance only when the subscription in a year exceeds the maximum for which relief is available.
Where a claim is made to carry back part of the relief, there is deemed to be a separate issue of shares in the earlier year.
If a company makes a bonus issue of shares, the relief given to the shares in the original holding is amended to attribute the relief to all of the shares in the new holding (meaning the original holding plus the bonus issue).
- Withdrawal of relief
Income tax relief may be withdrawn in the following circumstances:
| Circumstance |
| A breach of conditions by the investor, the company or the shares |
| A receipt of replacement capital |
| A disposal of the shares |
| A return of value to the investor |
| The making of payments to non-EIS investors |
Assessments to withdraw relief are made for the year in which the relief was originally given. In some circumstances the amount to be withdrawn is computed using the rate at which the relief was originally calculated, which is known as the EIS original rate .
Breach of conditions
Relief will be withdrawn in full where:
- the company or investor breaches the conditions for relief; or
- the shares cease to be eligible shares.
The following will not be treated as a breach of conditions:
- share exchange – special rules exist to prevent the withdrawal of relief where an EIS company is taken over by a new company (Newco) in a share for share exchange. The exchange must be for bona fide commercial reasons and not form part of an arrangement to avoid a liability to tax.
This provision only applies if all of the following conditions are satisfied:
- Newco must have only previously issued subscriber-only shares;
- Newco must acquire the entire issued capital of the EIS company (EISco) for consideration consisting entirely of shares in Newco;
- the Newco shares must be of the same class and have the same rights as the existing EISco shares; and
- the Newco shares must be issued to the holders of EISco shares in proportion to their holdings in EISco.
Advance clearance must be obtained from HMRC before the exchange takes place. Assuming clearance is given, the effect of the provisions are:
- Newco stands in the shoes of EISco, therefore the investor is deemed to have acquired the Newco shares at the time the EISco shares were issued and for the same consideration;
- there is no deemed disposal of the EISco shares by the investors; and
- investors will not lose their EIS income tax or capital gains tax relief; or
- winding up – a company will not cease to be a qualifying company or 90% subsidiary company simply because the company, subsidiary or any other company is wound up or is in receivership/administration, provided the winding up etc is for bona fide commercial reasons and does not form part of an arrangement to avoid a liability to tax.
Similarly, a company will not cease to be a qualifying 90% subsidiary company if there are arrangements in place by the parent company for the disposal of its interest in the subsidiary, providing the arrangements are for bona fide commercial reasons and do not form part of an arrangement to avoid tax.
Replacement capital
EIS relief will be withdrawn in full if the EIS company (or one of its subsidiaries) during Period A either:
- acquires the entire issued share capital of another company, and the investor (or group of persons including the investor), at any time in the period, controlled the EIS company and the company whose shares were acquired; or
- acquires the trade, or most of the assets of a trade, and the investor (or a group of persons including the investor), at any time in the period, either:
- owned more than a half share in that trade; or
- controlled the EIS company and another company which carried on the trade.
Share disposal
Relief will be withdrawn if the investor disposes (or makes a deemed disposal) of the shares in Period A.
- The following transactions will give rise to a deemed disposal :
- the grant of a put option on the EIS shares requiring the grantor of the option to purchase the EIS shares (any shares acquired by the investor after the granting of the put option are ignored and are not deemed to be disposed of); or
- the grant of a call option on the EIS shares requiring the investor to sell the shares.
- The following transactions do not constitute a disposal for these purposes:
- a disposal on death;
- transfers of shares between spouses – the receiving spouse stands in the shoes of the original investor; or
- standard provisions in a company’s Articles of Association requiring a shareholder to sell the shares if the majority of the shareholders accept an offer from a third party to purchase the company’s entire issued share capital.
The amount of relief withdrawn is calculated using the EIS original rate and depends on whether the disposal was at arm’s length, as follows:
- disposal not at arm’s length – the relief is withdrawn in full; or
- disposal at arm’s length – the amount of relief withdrawn is the lower of:
- the proceeds from the disposal, multiplied by the EIS original rate; and
- the relief originally given.
Where the initial relief given on the subscription was restricted (that is, it was less than the tax at the EIS original rate on the amount invested because, for example, the individual had insufficient income tax liability to utilise the relief), the relief withdrawn is calculated by applying the fraction A/B where:
- A is the EIS relief given (in terms of the reduction in the tax liability); and
- B is the notional tax at the EIS original rate on the amount subscribed.
Mr A acquired 1,000 shares in B Ltd under the EIS scheme in 2010/11. He paid £150,000 and benefited from EIS relief of £30,000 (£150,000 @ 20%). The shares were sold at arm’s length in 2013/14 for £125,000. The amount of income tax relief withdrawn is calculated as the lower of:
| £ | |
| Proceeds x EIS original rate (£125,000 @ 20%) | 25,000 |
| Relief originally given (£150,000 @ 20%) | 30,000 |
| Therefore, relief withdrawn | 25,000 |
If Mr A’s relief in respect of the shares had been restricted (say, because his tax liability for 2010/11 was only £22,500), the relief withdrawn on the disposal of B Ltd shares would be £18,750 ((125,000 @ 20%) x (22,500/30,000)).
Return of value
Relief will be withdrawn if the company, or a person connected with the company, makes a payment (which is not insignificant) to the investor, directly or indirectly, during period C.
For these purposes, insignificant means a sum which does not exceed £1,000, or, if it does, an amount which is insignificant in relation to the whole amount subscribed for the shares by the individual. If the individual receives a return of value (whether or not insignificant), and before that time had received an insignificant return of value, the amounts are aggregated to calculate the reduction or withdrawal of relief.
The following table summarises the items which are treated as a return of value, and how the value is quantified:
| Event | Value returned |
| Repayment, redemption or repurchase of shares or securities Payment for giving up rights to share capital or securities on its redemption |
Greater of:- amount received; or- market value of shares |
| Repayment of a debt to the investor incurred before the subscription for EIS shares, if made in connection with any arrangement for their acquisition Payment to individual for giving up rights to repayment of debt (except an ordinary trade debt) |
Greater of:- amount received; or- market value of debt |
| Company releases or waives any liability of the individual to the company Company discharges the individual’s liability to a third party |
Amount of liability |
| Company transfers an asset to the individual at less than market value Company acquires an asset from the individual at more than market value |
Excess of market value over consideration given |
| Company makes a loan to the individual which is not fully repaid before share issue | Amount of loan outstanding, less any repayment made before issue of shares |
| Company provides any benefit or facility to the individual | Cost of providing benefit, reduced by any contribution from the individual |
| Company makes any other payment to the individual | Amount of the payment |
| Individual receives a payment/asset in the course of winding up the company | Amount of payment or market value of asset as appropriate |
There will be no reduction or withdrawal of EIS relief if the company receives replacement value from the individual during the period which is at least as much as the original return of value to the individual. The replacement value can be received before or after the original receipt of value, but it will be ignored if it takes place outside the period commencing 1 year before the issue of shares and ending on the termination date .
The following payments constitute replacement value:
- a payment to the company (other than an excepted payment) to acquire an asset at more than market value;
- a sale of an asset to the company at less than market value;
- the reversal of an initial waiver by the company of a subscriber’s liability; and
- the reversal of an initial discharge by the company of a subscriber’s liability.
An excepted payment is broadly any payment for goods, services, interest etc at a commercial market rate.
The amount of relief withdrawn is equal to the amount of value received, at the EIS original rate of tax. The relief withdrawn cannot exceed the relief originally given.
In 2012/13 Mr A subscribed for shares in B Ltd at a cost of £30,000. He obtained income tax relief of £9,000 (£30,000 @ 30%). In 2014/15, the company transferred a car valued at £6,500 to Mr H for £4,000. Income tax relief will be withdrawn as follows:
| £ | |
| Market value of asset transferred | 6,500 |
| Consideration paid | (4,000) |
| Excess | 2,500 |
| Income tax relief withdrawn (2,500 @ 30%) | 750 |
