UK: Investing In Companies - Tax Incentives

Executive summary

Investing in smaller businesses can often be viewed as risky. But there can be significant tax incentives for investing in some companies, which help to mitigate economic risk.

For those companies looking for alternatives to bank funding, the Enterprise Investment Scheme (EIS) and venture capital trusts (VCTs) are options well worth exploring. In relation to the EIS, tax relief is potentially available to owner-managers of businesses, as well as outside investors. In this guide we examine the EIS and funding from VCTs, which can be an important source of financial support for smaller businesses.

Introduction

This guide summarises the main features of the current range of tax incentives available for individuals and, under limited circumstances, trustees contemplating investment in companies, based on legislation and information available as at May 2011.

Two main types of investment are available: the EIS and VCTs.

Under the EIS, individuals invest directly in unquoted trading companies, whereas under the VCT scheme they invest in a quoted vehicle whose managers invest funds in such companies ('investee' companies).

These have some characteristics in common but a number of important differences. The appendix provides a comparison between the two schemes.

The reliefs that investors are likely to be most interested in are:

• Income tax relief on investment/dividends
• Capital gains tax (CGT) relief on sale of EIS/VCT shares
• CGT deferral under EIS.

Qualifying individuals

EIS

Investors must be individuals to qualify for income tax relief. In addition, they must be resident and ordinarily resident in the UK if they are to qualify for CGT deferral relief.

Trustees of certain trusts can get CGT deferral relief, but not income tax or CGT-free sales.

Broadly, the individual must not be connected (in a period beginning two years before the share issue and ending three years after the later of the issue of the shares or commencement of trade) with the company in which they invest, which means:

• He and his associates must not own more than 30% of: the ordinary shares, or the voting rights, or the aggregate of the issued share capital and loan capital, or assets on a winding up. (Associates include business partners and relations i.e. spouse/civil partner, grandparents, children and grandchildren – but not brothers or sisters – in addition to trustees of certain trusts).
• He must not be a paid director of the company except in limited circumstances.
• He must not receive value from the company e.g. repayment of existing loans, receive new loans, excessive dividends.
• He must not be an employee of the company or any of its 51% subsidiaries.

The rules are complex and have not been covered here in detail. This guide provides an overview of the rules only.

Not all the above conditions apply if only CGT deferral is being sought.

VCT

To receive the VCT income tax relief an investor needs to be aged 18 or over. Trustees cannot qualify for this relief. There are complex provisions that can deny income tax relief where the investment is financed by loans

Qualifying companies

EIS

The gross value of the assets of the company (or group if appropriate) must not exceed £7m immediately before the investment takes place and £8m immediately thereafter.

The company must not be "in difficulty" to qualify for the scheme (under the EU Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty).

Investment must be into new ordinary shares that have no preferential rights. The company must be unquoted (AIM qualifies) although it could become quoted in the relevant period (three years from the later of the share issue or commencement of trade) without loss of relief, if no prior arrangements for a quotation were in place.

The company must have a "permanent establishment" in the UK. The funds raised must be used in qualifying activities within 24 months of the later of the share issue and the commencement of trade.

Certain trades are specifically excluded, including:

• dealing in property, shares, commodities and other financial instruments
• property investment and development
• insurance and banking (though not insurance broking)
• leasing
• legal and accounting services
• farming, market gardening and forestry activities
• hotels and nursing homes
• exploitation of intellectual property rights (not created by the company)
• ship building
• coal and steel production.

In addition the company must not be under the control of another company and is restricted as to how it holds shares in subsidiaries.

VCT

A VCT cannot be a close company and must have received HMRC's approval for operation as a VCT. Broadly similar rules apply to define the types of companies in which a VCT can invest. However, a VCT may have up to 30% of its investments in other assets such as fixed interest stocks i.e. at least 70% by value of its investments must be represented by shares or securities in qualifying companies. Of the 70% of investments that must be in qualifying companies, at least 70% of this must be in "qualifying ordinary shares" – i.e. ordinary, non-preferential, non-redeemable shares (though please note recent changes to allow certain preference shares). There is a three year grace period for satisfying these conditions for new VCTs. The VCT's shares must be admitted to trading on an EU regulated market. Any money held by a VCT, or held on its behalf, is treated as an investment for the purpose of these tests even if the funds are held on non-interest bearing accounts.

No more than 15% of the value of a VCT's investments can be represented by shares in any one company.

Overview of changes in recent years

The Government announced that legislation will be introduced in the Finance Act 2012 that will (subject to State Aid approval) apply to shares issued on or after 6 April 2012, which will increase:

• the employee limit for investee companies to fewer than 250 full-time employees (currently 50 employees);
• the size threshold for the gross assets test for investee companies to no more than £15m before investment (currently £7m immediately before investment and £8m immediately thereafter);
• the maximum annual amount that can be invested in a company through the EIS and from VCTs in any 12 month period to £10m (currently £2m);
• the annual amount, qualifying for income tax relief, that an individual can invest under the EIS to £1m (currently £500,000).

In respect of shares issued before 6 April 2012, it was also announced that legislation will be introduced to prevent companies whose trade consists wholly or substantially in the receipt of feed-in tariffs (FITs) or similar subsidies from qualifying for EIS or VCT investment in cases where they do not start commercially generating electricity before 6 April 2012. However, companies who have issued shares prior to 23 March 2011 will not be affected by this change.

The Finance Bill 2011 introduces an increase in the rate of EIS income tax relief for an individual from 20% to 30% (subject to State Aid approval and the Bill receiving Royal Assent).

The following changes were announced in the 2010 Budget and implemented in the Finance (No 3) Act 2010 and apply to shares issued on or after 6 April 2011. There were four specific changes, which were required to maintain State Aid approval from the European Commission (EC) for the schemes.

• A new requirement was introduced that to qualify under the schemes, a company must not be "in difficulty".
• The requirement that to qualify under either scheme a company must carry on its qualifying trade wholly or mainly in the UK was replaced with a requirement that the company issuing the shares must have a "permanent establishment" in the UK.
• The requirement for a VCT's shares to be included in the official UK list was replaced with one that its shares must be admitted for trading on an EU regulated market. The EC publishes a list of all regulated markets in the Official Journal of the EU, which is available on its website.
• The requirement that a VCT must hold at least 30% of its qualifying holdings by value in qualifying ordinary shares was increased to 70%, but the definition of qualifying ordinary shares was also changed to allow VCTs to include shares which may carry certain preferential rights to dividends.

Income tax relief on investment/dividends

EIS

Individuals can get a tax credit of 30% (prior to 6 April 2011 the rate of relief was 20%) on a maximum investment of £500,000 in cash for newly issued shares in a single tax year. The maximum income tax relief is, therefore, £150,000 (£100,000 prior to 6 April 2011). The minimum investment per company per tax year is £500. The credit is set off against the individual's tax liability but he/she must have an income tax liability sufficient to cover the credit in order to obtain the relief in full. The relief can only reduce the income tax liability to nil.

For investments made in the 2009/2010 income tax year and subsequent years, an individual may carry back any EIS income tax relief arising at any time in an income tax year, to the previous income tax year. This is subject to the overall cap of £500,000 per income tax year, and subject to the individual having sufficient income to offset the relief.

Income tax relief will be withdrawn if shares are disposed of within three years of acquisition or within three years of the company starting to trade if later, or if the investor or company ceases to qualify.

Income tax relief will not be withdrawn if the company becomes quoted within three years of the qualifying investment, so long as this was not part of a pre-arranged scheme.

Dividends from EIS companies are taxable in the normal way.

VCT

The rate of income tax relief is 30%.

The maximum annual investment is £200,000 per tax year. No carry back facility is available.

Income tax relief is given as a credit against the individual's income tax liability for the year of subscription.

Income tax relief will be withdrawn if the VCT ceases to qualify within five years of the issue of shares or if the shares are disposed of within five years of issue.

Dividends in respect of up to £200,000 of VCT investment per annum are free of income tax. This, unlike the income tax relief on subscriptions, is also available on 'second hand' shares as well as newly issued ones.

Capital gains tax relief on sale of shares

EIS

As long as income tax relief was given on shares subscribed for and not withdrawn then those shares will be free of CGT when ultimately sold. It follows therefore that the company must carry on its qualifying activity for three years from the date of acquisition of the shares, or three years from commencement of trading, if later. After that time it can carry on nonqualifying activities such as investment and the shares will still be free of CGT when sold.

In cases where a disposal of EIS shares does not meet the tests for CGT exemption (as EIS income tax relief has been withdrawn or not available in the first place), the EIS shares will be subject to CGT on a disposal. The rates of CGT that apply to an individual for disposals on or after 23 June 2010 are:

• 10% for gains qualifying for entrepreneurs' relief (ER) within the lifetime allowance;
• 18% to the extent that there is any income tax basic rate band not being used against income (or 'allocated' against gains taxed at the ER 10% rate); and
• 28% for the remaining gains.

ER is subject to a lifetime allowance, which stands at £10m per individual with effect from 6 April 2011 (immediately prior to this the limit was £5m).

VCT

Disposals of VCT shares will be free of CGT as long as the VCT qualified when the shares were bought and sold and provided the amount invested did not exceed the permitted annual maximum of £200,000. Relief is available on shares that were subscribed for or purchased 'second hand.

Capital gains tax deferral relief

EIS

Capital gains made on the disposal of any kind of asset can be deferred by reinvestment in EIS companies. The investment must be in newly issued ordinary shares, subscribed for in cash.

Gains that can be deferred are those made on the disposal (not deemed disposal) of a chargeable asset not more than three years before, nor more than one year after, the EIS investment is made.

The maximum gain that can be deferred is not limited to the £500,000 applicable to the EIS income tax relief. It is possible to invest more than £500,000 and get deferral relief on the total investment. In addition, deferral relief is available where the investor does not meet the strict conditions of being unconnected with the EIS company. They can, for instance, be the sole shareholder. Deferral relief is not therefore dependent on income tax relief.

The deferred gains will become taxable if:

1. The EIS shares are sold or disposed of other than to a spouse.

2. The EIS shares are exchanged for non-qualifying shares.

3. The EIS shares cease to be eligible shares (e.g. conversion to deferred or preferred shares) within three years of issue or three years of commencement of trade, whichever is the later.

4. The investor becomes non-UK resident within three years of issue or three years of commencement of trade, whichever is the later, unless he is going to work full-time offshore for three years or less.

5. An EIS company ceases to qualify for any reason (e.g. starting a nonqualifying trade) in the three years following the issue of the shares, or in the three years from the commencement of trade, whichever is later.

6. The investor receives certain prohibited benefits in the period beginning one year before and ending three years after the issue of the shares or three years after the commencement of trade, whichever is the later. These can include directors' remuneration, rents, loans or interest, which HMRC regards as excessive. Even a small amount of 'excessive' benefit can trigger the whole of the deferred gains although there are de minimis levels. Value can be repaid to the company if it has inadvertently been withdrawn.

The deferred gains will not be taxed on death, or if the shares are transferred to a spouse. Death washes out the deferred gain completely. However, the death of a life tenant will lead to the crystallisation of a deferred gain when a trust has invested in an EIS company.

An inter-spouse gift means that a later disposal by the donee spouse triggers the deferred gain, which is chargeable on the donee. Gains which do crystallise can be deferred again by a further EIS investment. It is important to note that there is a risk that the EIS investment may turn out badly, involving loss of funds but still leaving tax to pay on the deferred gains. However, there may be CGT loss relief available on the EIS investment to soften the blow.

The interaction with ER

Prior to 23 June 2010 an individual could make an ER claim and defer the post ER gain under the EIS CGT deferral provisions. This meant that the individual could benefit from ER and defer paying the CGT on the disposal. Following the June 2010 'Emergency' Budget the legislation was modified such that an EIS CGT deferral claim cannot be made with respect to a qualifying ER gain to the extent that the special 10% ER rate applies.

Where an ER claim has been made on qualifying gains occurring between 6 April 2008 and 22 June 2010 EIS deferral relief can still be claimed. The rate changes will mean that a deferred gain coming into charge after 22 June 2010 will be taxed at 28% for a higher rate taxpayer based on current rates. For qualifying ER disposals occurring on or after 23 June 2010 the rules changed so that where a gain meets the conditions, and there is unused ER lifetime allowance, there is a choice between:

• making the ER claim:
• to benefit from the special 10% tax rate the tax is not deferred meaning it must be paid by 31 January following the tax year during which the qualifying ER disposal takes place; or
• making the EIS CGT deferral claim:
• where the gain is deferred but when the gain does become chargeable it cannot benefit from the special 10% rate meaning that it will generally be taxed at 28% at current rates (as it is unlikely that such an individual will have unused basic rate band).

For qualifying ER disposals occurring on or after 23 June 2010 the only time ER and EIS CGT deferral relief can be used with respect to the same gain is where the quantum of the gain is such that only a portion of it can benefit from ER (meaning that a portion does not benefit from the special 10% tax rate and is, therefore, eligible for EIS CGT deferral relief). In such cases the gain is in effect taken to be split between an ER gain (the tax on which has to be paid) and a non-ER gain (which can be deferred if there is an EIS investment within the qualifying period).

Deferred gains and tax rate changes

Where a gain is (or has been) deferred or rolled over it will be subject to tax at the rates prevailing when it comes into charge. This means that for a higher rate taxpayer, if current rates remain the same, gains will be subject to tax at 28%.

It is therefore necessary to consider whether the cash flow benefit of deferring paying tax on a pre-23 June 2010 gain, potentially coming back into charge at 28% or whatever the future rate is, would be more beneficial than if no deferral claim were made and suffering an 18% tax charge now. Account should also be taken of the effect on loss reliefs, availability of annual CGT exemptions, and any potential interest charges.

Where a deferral claim has already been made, consideration should be given to withdrawing the claim. It should be noted that where claims are made within a self-assessment tax return, the timeframe for withdrawing the claim is the same as for any other amendment to a tax return (that is one year after 31 January following the end of the tax year for which the return was prepared).

VCT

CGT deferral relief is not available for VCT investments

Losses

EIS

If EIS shares are sold at arm's length at a loss, or the company goes into liquidation, a capital loss will accrue. This is calculated in the normal way less any income tax relief given and not withdrawn. This capital loss can also be set against income in the year it arises and/or the previous tax year.

VCT

No allowable CGT loss accrues on VCT shares if they are sold at a loss or become worthless.

Practicalities

EIS

None of the EIS reliefs can be obtained until the company supplies a form EIS 3 to the investor. It can only provide this when it has been trading for at least four months. Thus there may be a significant delay in obtaining relief when a company is not already trading and needs time to prepare for the trade. There are further requirements as to how quickly the cash raised must be invested into a qualifying trade.

If an EIS 3 is not available when the tax return is submitted, then the taxpayer must pay the tax and subsequently amend the return and get a repayment of the tax overpaid.

The company must submit an EIS 1 form within two years of the end of the year of assessment in which the shares are subscribed for or, if the company completed the first four months of trading in a later year of assessment, within two years of the end of that four month period.

The investor must claim relief within five years from the 31 January following the tax year in which the subscription was made. This time limit for a claim for EIS relief is specifically prescribed in the legislation and therefore not affected by the general time limit for making claims having reduced from five years and ten months to four years.

VCT

The investor must claim relief within four years from the end of the tax year in which the investment was made

Inheritance tax considerations

The inheritance tax (IHT) aspects of these schemes should also be borne in mind.

EIS shares

EIS shares cannot normally be quoted (shares in AIM companies do not count as quoted for this purpose) and must be in trading companies. They should therefore normally attract IHT business property relief (BPR). Holdings of any size attract relief. A holding of less than 30% in an EIS company is therefore potentially very useful since it could attract one or more of the following:

• Income tax relief at 30%
• CGT exemption on disposal at a gain but relief on a loss
• 100% IHT relief on a gift or on death

The IHT relief for EIS shares should be contrasted with the position of any private assets which may be sold to realise the funds to invest; these are normally fully liable to IHT, so by reinvestment a considerable IHT advantage can be obtained. Normally however, the new shares must be owned for two years prior to the IHT event for BPR to be due, so life insurance cover may be advisable in the meantime.

VCT shares

VCT shares, since they must be quoted, will not attract any special reliefs for IHT purposes.

Important notes

This guide summarises various tax advantages for investment in companies. However, anyone contemplating any kind of investment should not be swayed unduly by tax considerations and should first consider, after taking any appropriate professional advice, whether the proposal makes commercial sense. The levels and bases of, and reliefs from, taxation can change and the value of a relief depends upon the individual circumstances of the investor.

This guide is only a brief summary of complex tax legislation and detailed tax advice should always be taken.

You should be aware that investing in a VCT or EIS carries certain risks and you could lose a substantial proportion, or all, of your investment. The risks are highlighted in the prospectus or other investment documentation for each issue, which you should read carefully. As stated above, it is important to obtain detailed advice before taking any action.

APPENDIX Overview of current rules

*Replaces earlier schemes effective from 1/1/94 (EIS) and 6/4/95 (VCT) – conditions explained in earlier editions.

# Up to £500,000 can also be carried back to the previous year if investment made in the 2009/2010 income tax year or subsequent years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.