Guidance

Enterprise Investment Scheme

Published 7 October 2013

1. Introduction

The Enterprise Investment Scheme (EIS) is designed to help smaller higher-risk trading companies to raise finance by offering a range of tax reliefs to investors who purchase new shares in those companies.

This guide provides an overview for companies and potential investors who have heard of the Scheme and want to know more about it and how it works. It does not cover all the detailed rules, so companies and investors should not proceed solely on the basis of the information in it, and should consider seeking professional advice.

The information in this guide relates only to shares issued on or after 6 April 2012. It does not cover the legislation relating to shares issued before that date. Also bear in mind that the reliefs and legislation relating to them may change in the future.

HM Revenue and Customs (HMRC) provides more detailed guidance in the Venture Capital Schemes Manual (VCM), to which this guide occasionally refers.

This guide is divided into 2 parts:

  • part one focuses on the investor
  • part two focuses on the company

And there are pointers to additional sources of information at the end.

It is strongly advised that you read both parts, irrespective of whether you are a potential investor or a company considering using the Scheme.

It is important that investors are aware of the rules the company has to observe, not just at the time of the investment but for at least 3 years afterwards. If it fails to meet those rules tax relief will not be given, or, if it has already been given, will be withdrawn. Similarly, it is important that companies appreciate the conditions to be met by investors, so that shares are not issued on which the investor expects to be able to claim tax relief, only to find that no relief is due.

Both investors and companies should note that no relief will be given (or if it has been given, it will be withdrawn) if any scheme has as its main purpose, or one of its main purposes, the avoidance of tax. (The tax reliefs available under the EIS are of course not considered to be avoidance of tax.)

1.1 EIS and the investor

All shares must be paid up in full, in cash, when they are issued.

Please note: one of the most common reasons for investments failing to qualify for relief under EIS is that shares are issued to investors without the company having received payment for them. This sometimes happens when a new company is registered at Companies’ House and shares are issued to members as part of the registration process, but the company then takes some time to set up a bank account and the shares are not paid for until that has happened. We would advise companies and investors to ensure that any shares, on which it is intended EIS relief will be claimed, are not issued during the company registration process but are issued only at a later date when the company is able to receive payment for them.

Shares must be full-risk ordinary shares, and may not be redeemable or carry preferential rights to the company’s assets in the event of a winding up. Shares may carry limited preferential rights to dividends, but may not include rights where either:

  • the rights attaching to the share include scope for the amount of the dividend to be varied based on a decision taken by the company, the shareholder or any other person - (this exclusion covers only those shares which carry preferential rights and does not therefore prevent the voting of dividends in respect of non-preferential shares, nor does it prevent shareholders from choosing to waive a dividend payment should they wish to do so)
  • the right to receive dividends is ‘cumulative’ - that is, where a dividend which has become payable is not in fact paid, the company is obliged to pay it a later time, normally once funds become available

There must be no arrangements to protect the investor from the normal risks associated with investing in shares, and no arrangements at the time of investment for the shares to be sold at the end of the relevant period.

The shares may not be acquired using a loan made available on terms which would not have applied other than in connection with the acquisition of the shares in question.

The shares must not be issued under any ‘reciprocal’ arrangements, where company owners agree to invest in each other’s companies in order to obtain tax relief.

There must be no arrangements (either at the time of issue of the shares or later) to structure a company’s activities with the main purpose of allowing a party other than the company to benefit from the tax advantaged finance which the scheme is intended to incentivise, or where those activities have no commercial purpose other than to generate tax relief.

Investment can be directly into the company, or through an EIS Fund. For more on EIS Funds see 1.6 Investment through EIS funds

For more information see VCM12000

1.2 EIS - the Tax Reliefs available

1.2.1 Income Tax Relief

This is available to individuals only, who subscribe for (although this can be through a nominee), shares in an EIS. Relief is at 30% of the cost of the shares, to be set against the individual’s Income Tax liability for the tax year in which the investment was made.

Before 6 April 2011 relief was at 20% of the cost of the shares, and before 6 April 2012 there was a minimum investment of £500.

Relief can be claimed up to a maximum of £1,000,000 invested in such shares, giving a maximum tax reduction in any one year of £300,000 providing you have sufficient Income Tax liability to cover it.

There is a ‘carry back’ facility which allows the all or part of the cost of shares acquired in one tax year, to be treated as though those shares had been acquired in the preceding tax year. Relief is then given against the Income Tax liability of that preceding year rather than against the tax year in which those shares were acquired. This is subject to the overriding limit for relief for each year.

See VCM10530 for more information about how the relief works to reduce Income Tax liability.

The shares must be held for a certain period or Income Tax relief will be withdrawn. Generally, this is 3 years from the date the shares were issued. But if the qualifying trade started after the shares were issued, the period is 3 years from the date the trade actually started.

Income Tax relief can only be claimed by individuals who are not ‘connected’ with the company. (See 1.3 Connection with the company)

1.2.2 Capital Gains Tax exemption

If you have received Income Tax relief (which has not subsequently been withdrawn) on the cost of the shares, and the shares are disposed of after they have been held for the period referred to at paragraph 1.2.1 Income Tax Relief (above), any gain is free from Capital Gains Tax.

Note: if no claim to income tax relief is made, then any subsequent disposal of the shares will not qualify for exemption from capital gains. This is because of the difficulty in establishing perhaps many years after the investment, whether both the investor and the company met all of the qualifying conditions not only at time of investment but for a continuous period of several years after investment. Entrepreneur’s relief may be available in certain circumstances - see Capital Gains Tax reliefs on shares

1.2.3 Loss Relief

If the shares are disposed of at a loss, you can elect that the amount of the loss, less any Income Tax relief given, can be set against income of the year in which they were disposed of, or any income of the previous year, instead of being set off against any capital gains.

See VCM70000 for more information about share loss relief.

1.2.4 Capital Gains Tax deferral relief

This is available to individuals and trustees of certain trusts. The payment of tax on a capital gain can be deferred where the gain is invested in shares of an EIS qualifying company. The gain can arise from the disposal of any kind of asset, but the investment must be made within the period 1 year before or 3 years after the gain arose.

There are no minimum or maximum amounts for deferral. And it does not matter whether the investor is connected with the company or not. Unconnected investors may claim both Income Tax and capital gains deferral relief.

There is no minimum period for which the shares must be held, the deferred capital gain is brought back into charge whenever the shares are disposed of, or are deemed to have been disposed of under the EIS legislation.

The Budget on 22 June 2010 announced changes to the capital gains rules.

After that date it is no longer possible both to defer such gains under the EIS rules, and for them to qualify for Entrepreneur’s Relief. If you think that you may be affected by this you should seek advice before proceeding with investment under EIS.

See VCM23000 for more information about capital gains deferral relief.

1.3 Connection with the company

You are not eligible for Income Tax relief on the cost of your shares if you are connected with the company. You can be connected in 2 ways.

1.3.1 Connection by financial interest in the company

A financial interest in the company, or in any subsidiary of the company, can make you connected with it. If you control the company, or hold more than 30% of the share capital or voting rights, you are connected with the company. If you are entitled to more than 30% of the assets in the event of a winding up you are also connected, note that in looking at entitlement to assets, loans to the company are taken into account.

These conditions apply throughout the period beginning 2 years before the issue of the shares and ending 3 years after the issue (or 3 years after the commencement of the trade if that followed the share issue). So if you take a 15% stake and are given Income Tax relief, and a year later you take an additional 20% stake, you have become connected, and the relief will be withdrawn.

Shareholdings/voting rights/rights to assets in a winding up held by your associates are also taken into account. Associates are defined as business partners, trustees of any settlement where you are a settlor or beneficiary, and relatives. Relatives are spouses or civil partners, parents and grandparents, and children and grandchildren, brothers and sisters are not counted as associates for the purpose of the EIS.

1.3.2 Connection by employment

If you are a partner, director (though see 1.3.3 Business Angels) or an employee of the company, you are connected with it. You are also not eligible for relief if an associate (see above) is so connected. As with connection because of an interest in the company, this restriction applies not only at the time the shares were issued but to the 2 year period before the shares were issued and the 3 years after the issue (or the 3 years after the commencement of the trade if that followed the share issue).

1.3.3 Business Angels

However there is an exception for directors who are ‘Business Angels’. Where your only connection with the company is as a director who receives no remuneration (and is not entitled to such remuneration), and you had not previously been involved in carrying on the trade the company is carrying on at the time it issues the relevant shares, an investment may qualify for Income Tax relief.

That relief is not withdrawn if you subsequently become a paid director, providing the remuneration is reasonable. You can also claim Income Tax relief on investments made after becoming a paid director, providing that either:

  • those shares are issued during the period as covered at paragraph 1.2.1 above relating to the shares issued before you became a paid director
  • or that the shares are issued before the third anniversary of the date of issue of shares in respect of which you qualified for relief under the Seed Enterprise Investment Scheme (SEIS)

See VCM11000 for further information about the connection rules.

1.3.4 Summary of tax reliefs

Reliefs available depend on whether an investor is connected with the company

Item Unconnected Connected
Income Tax relief on subscriptions Yes No
Capital gains exemption on disposal of shares eligible for Income Tax relief Yes No
Loss Relief on disposal of shares disposed of at a loss Yes In some cases
Capital gains deferral (unlimited) Yes Yes

1.4 How to claim tax relief

You cannot claim relief until the company sends you a form EIS3. (See Part 2 for an explanation of what the company has to do to put itself in that position.) If you invest through an Approved Enterprise Investment Scheme (EIS) Fund you will receive a form EIS5, see 1.6 Investment through EIS funds

Your claim can be made on the Self Assessment tax return for the tax year in which the shares were issued. If the shares were issued in a previous year, and/or if the claim is for capital gains deferral relief, the claim part of the form EIS3 must also be completed and sent to your tax office.

If you have an EIS3 for a year for which you have not yet received a tax return, you can request a change to your PAYE (Pay As You Earn) tax code, or an adjustment to any Self Assessment payment on account due. You will still have to make the claim itself on your tax return when you get it.

Claims to relief can be made up to 5 years after the first 31 January following the tax year in which the investment was made.

1.5 When relief is reduced or withdrawn

Tax relief will be withdrawn if, during the period set out at 1.2.1 Tax reliefs available:

  • you or an associate become connected (see above) with the company
  • the company loses its qualifying status

The circumstances in which this can happen are set out in Part 2. It is important to realise that the company may do something over which you have no control which results in its losing its qualifying status, and your relief being lost. But if a company ceases trading as a result of going into liquidation and the liquidation is for genuine commercial purposes, any Income Tax relief is not withdrawn.

Tax relief will be reduced or withdrawn if, during that period:

  • any of the shares are disposed of (unless the disposal is to a spouse or civil partner - in those circumstances the shares are treated as if the spouse or civil partner had subscribed for them)
  • you (or an associate) ‘receive value’ from the company (or a person connected with that company)

What constitutes receiving value is set out at VCM15060. It includes receiving a loan or benefit from the company, or the company selling an asset to you at less than market value (or you selling an asset to the company at more than market value). Relief can also be withdrawn if the company repays or repurchases its own share capital from any shareholder. How much Income Tax relief is withdrawn will depend on the amount of the value received, but the whole of any deferred capital gain will be brought back into charge. However, ‘insignificant’ amounts of value received can be ignored, and there is also a facility in some circumstances whereby if the value received is replaced as soon as is practicable, relief will not be withdrawn.

Please note that you are required by law to inform your tax office within 60 days of any of the events above occurring.

For more information on withdrawal or reduction of relief, see VCM15000

1.6 Investment through EIS Funds

You can also invest through an EIS Fund, which will invest on your behalf in a number of qualifying companies. You are still the owner of the shares, and the process for claiming relief is as set out above.

Some Funds, set up in a particular way, are approved by HMRC. If you invest through one of these funds, then providing certain conditions are met, there is no minimum investment per company requirement, and you can claim Income Tax relief as if the shares were subscribed for on the date the Fund closed, rather than the date when they were actually purchased. (Capital gains deferral relief is still claimed by reference to the date the investment in the EIS qualifying company was made.)

In these cases, instead of you receiving an EIS3 for each investment, the managers of approved Funds will send you a form EIS5 covering all the investments made on your behalf.

Please note that ‘approval’ by HMRC is relevant only to the tax treatment of the investments. It in no way bears on the commercial viability of the investments, and you are as liable to have relief reduced or withdrawn on any particular investment in the same way as anyone who invests directly into the company.

2. EIS and the company

In order for investors to be able to claim, and keep, EIS tax reliefs relating to their shares, the company which issues the shares has to meet a number of rules regarding:

  • the kind of company it is
  • the amount of money it can raise
  • how and when that money must be employed for the purposes of the trade
  • the trading activities carried on.

The company must satisfy HMRC that it meets these requirements, and is therefore a qualifying company.

2.1 The kind of company which can use the Scheme to raise money

Companies must be an unquoted company at the time the shares are issued - that means it cannot be listed on the London Stock Exchange or any other recognised stock exchange, it can subsequently become a quoted company without the investors losing relief, but only if there were no arrangements for it to become quoted in existence when the shares were issued. For the EIS rules the Alternative Investment Market and the PLUS Markets (with the exception of PLUS-listed) are not considered to be recognised exchanges, so a company listed on those markets can raise money under the EIS if it satisfies all the other conditions. The PLUS-listed market is regarded as a recognised stock exchange and shares listed on that market at the time of issue will not qualify for EIS.

The company:

  • must not control another company without that company being a qualifying subsidiary, nor must there be arrangements in existence at the time the shares are issued which could result in that being the case
  • must not be controlled by another company (or another company and any person connected with that company), nor must there be any arrangements in existence at the time the shares are issued for it to be controlled by another company. However where a company needs, for commercial reasons, to put a new holding company above itself and:

    • all the shares in the old company are exchanged for shares of the same kind in the new holding company
    • various other conditions, set out at VCM16030, are met then the tax relief applicable to the old shares is effectively transferred to the new shares

The company also:

  • may have subsidiaries, but if it does they must all be qualifying subsidiaries, eg the company has more than 50% of the ordinary share capital of the subsidiary, and it is not controlled (by other means) by another company - if the EIS company has a property management subsidiary that must be at least a 90% subsidiary
  • cannot have its gross assets - or of the whole group if it is the parent of a group - exceeding £15 million immediately before any share issue and £16 million immediately after that issue VCM13110 and Statement of Practice 2/06 explain how assets are valued for the purpose of this test)
  • must have fewer than 250 full-time employees (or their equivalents) at the time the shares are issued
  • can be either a company carrying on the qualifying trade, or the parent company of a trading group - the trade can be carried on either by the company issuing the shares or a subsidiary, but if it is carried on by a subsidiary, it must be at least a 90% subsidiary

Note: the rule is worded so as to prevent any party other than the company issuing the shares or its 90% subsidiary, from carrying on the trade for which the monies have been raised. That means that if the trade is being carried on in partnership then the company will not qualify. See VCM13080.

The rules regarding not being controlled by another company, qualifying subsidiaries and the company carrying on the trade must be met throughout the period outlined in Part 1. If they are not, then the investors will lose their reliefs.

For more detailed information on all the company conditions, see VCM13000.

2.2 Limit on money raised

Companies are not allowed to raise more than £5 million in total in any 12 month period from the venture capital schemes.

The schemes are the EIS, the SEIS and Venture Capital Trusts. Investments from any of these schemes must fall within the £5 million limit. The £5 million limit must also take into account any other investment which the company has received in the relevant 12 month period which is an investment deemed to be State Aid under any other scheme covered by the European Commission’s Guidelines on State Aid to promote Risk Capital Investments in Small and Medium-sized Enterprises.

If any share issue breaks that limit, none of the investors in that issue will be able to claim any of the EIS tax reliefs.

For more information, see VCM12030.

2.3 How and when money raised by the share issue must be used

The money raised by the share issue can be used either for the purpose of an existing qualifying trade or for the purpose of preparing to carry on such a trade. Where the shares are issued before 6 April 2011 the trade, or the preparation for it, must be carried on wholly or mainly in the UK. That requirement is removed for shares issued on or after 6 April 2011.

Alternatively it can be used to carry on research and development intended to lead to such a qualifying trade being carried on.

The money raised by the share issue must also be employed for the purposes of the trade or research and development within 2 years of the shares being issued (or within 2 years of the trade commencing, if that is later). From 6 April 2012, using the money to acquire shares in another company does not, of itself, count as ‘employment’ for this purpose. However, if the money is used to acquire shares in a company which after the investment is a 90% qualifying subsidiary, and that subsidiary uses the monies within the appropriate timescale for the purposes of its qualifying activity, then that will be regarded as ‘employment’ of the monies.

If these requirements are not met then the investors will not be eligible for relief on the cost of their shares, and any relief given will be withdrawn.

It is important that companies do not raise money under the EIS unless they are reasonably confident of meeting these requirements.

For more information, see VCM12060.

2.4 Trading activities

The trade must be conducted on a commercial basis with a view to the realisation of profits.

Most trades qualify, but some do not. Those that do not are termed ‘excluded activities’ and are:

  • dealing in land, in commodities or futures in shares, securities or other financial instruments
  • dealing in goods, other than in an ordinary trade of retail or wholesale distribution
  • financial activities such as banking, insurance, money-lending, debt-factoring, hire-purchase financing or any other financial activities
  • leasing or letting assets on hire, except in the case of certain ship-chartering activities
  • receiving royalties or licence fees (though if these arise from the exploitation of an intangible asset which the company itself has created, that is not an excluded activity)
  • providing legal or accountancy services
  • property development
  • farming or market gardening
  • holding, managing or occupying woodlands, any other forestry activities or timber production
  • shipbuilding
  • coal production
  • steel production
  • operating or managing hotels or comparable establishments or managing property used as an hotel or comparable establishment
  • operating or managing nursing homes or residential care homes, or managing property used as a nursing home or residential care home
  • generating or exporting electricity which will attract a Feed-in Tariff, unless generated by hydro power or anaerobic digestion, or unless carried on by a community interest company, a co-operative society, a community benefit society or a Northern Irish industrial and provident society
  • providing services to another person where that person’s trade consists, to a substantial extent, of excluded activities, and the person controlling that trade also controls the company providing the services

A company can carry on some excluded activities, but these must not be ‘substantial’ part of the company’s trade. HMRC take ‘substantial’ to mean more than 20% of the company’s activities. See VCM3000.

There is no requirement that the qualifying company is resident in the UK, but for shares issued on or after 6 April 2011, the company must have a ‘permanent establishment’ in the UK. See VCM13030.

If the company fails to meet these requirements throughout the period, relief will be withdrawn from investors.

Please note that companies that have raised money under the Scheme are required by law to inform their Small Company Enterprise Centre (SCEC) office if they fail to meet any of the above requirements, or an investor ‘receives value’ from the company or an associate, within 60 days of the event which led to that failure.

2.5 How a company qualifies

The EIS is administered in HMRC by the SCEC.

The SCEC decides if a company and a share issue qualifies. If they do, the SCEC then takes responsibility for checking the accounts etc of the company to ensure that it continues to meet the requirements of the scheme.

The SCEC also operates an advance assurance scheme, whereby companies can submit their plans to raise money, details of their structure and trade etc before the shares are issued, and the SCEC will advise on whether or not the proposed issue is likely to qualify.

Information on the advance assurance procedure and the kind of information the SCEC will need to have to consider an application is at VCM14000. Although companies are not required to use it, HMRC recommends using the Form EIS(AA) to make such an application. Guidance on what kind of information the SCEC need to consider an application for an advance assurance can be found at VCM14040.

Companies are not required to obtain such an assurance, but companies, particularly those using the EIS for the first time, may consider it prudent to do so. It gives an opportunity to spot any problems before shares are issued, and an assurance from the SCEC is also useful for companies to show to potential investors.

Once the shares are issued - irrespective of whether or not an advance assurance has been given - the company has to complete form EIS1 and send it to the SCEC. A separate form EIS1 must be submitted for each share issue.

Please note that a form EIS1 cannot be accepted by the SCEC unless the company has been trading for at least 4 months. And it also cannot be accepted if it submitted later than 2 years after the end of the year of assessment in which the shares were issued (or 2 years after the end of the 4 month period if that is after the end of that year of assessment).

If the SCEC accepts that the company, its trade, and the shares all meet the requirements of the scheme, it will issue a form EIS2 to that effect, and supply sufficient forms EIS3 for the company to send to the investors so they can claim tax relief.

This process is repeated each time a company issues shares which it wishes to attract EIS reliefs for investors.