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HMRC internal manual

Employment Related Securities Manual

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HM Revenue & Customs
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Securities with Artificially Enhanced Value

Examples: enhancement of unrestricted shares

Example 1: effect of non-arm’s length intra-group transactions

On 1 July 2005 an employee is given 5,000 shares in a subsidiary company of his employer, representing 40% of the share capital.

The shares are sold on 1 July 2008.

The subsidiary company trades but occupies part of its parent company’s office rent-free. The group is treated as a Small or Medium Enterprise (SME) for transfer pricing purposes. The market value rental would be £10,000 p.a.. It is accepted that this will affect the value of 40% of the shares by £4,000 each year.

The increase in value of the shares is caused by a favourable contract with the parent company on a non-arm’s length basis. Share value is as follows:

  Date Market value per share Market value 5,000 shares
       
  1 July 2005 £5 £25,000
  5 April 2006 £6 £30,000
  5 April 2007 £7 £35,000
  5 April 2008 £4 £20,000
  1 July 2008 £6 £30,000

For each relevant period there is an increase value is caused by a thing done (no rent) otherwise than for genuine commercial purposes (the non-arms length transaction). The charges will be:

Year Relevant Period   IMV   MV   IMV - MV % of MV
                 
2005/6 1/7/05 – 5/4/06   £30,000   £27,000   £3,000 11
2006/7 6/4/06 – 5/4/07   £35,000   £31,000   £4,000 13
2007/8 6/4/07 – 5/4/08   £20,000   £16,000   £4,000 25
2008/9 6/4/08 – 1/7/08   £30,000   £29,000   £1,000 3

The amount by which IMV exceeds MV in 2005/6, 2006/7 and 2007/8 is greater than 10% and therefore ITEPA03/S446L applies to those relevant periods and the excess of IMV over MV counts as employment income of the year in question. The amount by which IMV exceeds MV in the relevant period which falls in 2008/9 is less than 10% and therefore ITEPA03/S446L does not apply to that relevant period.

Example 2: effect of non-commercial reductions

An employer sets up a complex avoidance scheme involving pumping money into an employee benefit sub-trust, resident overseas. The employee has an interest in the sub-trust which falls within the definition of an employment-related security and which is forfeitable if he dies. The sub-trust makes some payments to the beneficiary (employee) during the year. Assume for the year ended 5 April 2008:

Opening market value of employee’s interest in sub-trust 6/4/07 £1,000,000
   
Income of sub-trust 6/4/07 – 5/4/08 £500,000
Money paid out to employee 6/4/07 – 5/4/08 £200,000
Closing market value of employee’s interest in sub-trust 5/4/08 £1,300,000

No adjustment under S446M (securities subject to restriction on valuation date) is required because there will be a deemed S431(1) election in accordance with S431B and because the transactions are part of an avoidance scheme (see ERSM30480). Despite being forfeitable, the securities are deemed to be acquired by the employee at their unrestricted market value and chargeable under ITEPA03/S62 accordingly.

  Applying S446L (3) IMV MV    
           
  Market value at 5/4/08 £1,300,000 £800,000    
  S446L(7)(b) add back non-commercial reductions £200,000 £200,000    
  IMV – MV £1,500,000 £1,000,000 = £500,000

It is important to note that payments to the employee may be separately taxable under other provisions e.g. dividends remain subject to Schedule F. If an avoidance scheme uses unusual transactions or payments with their own tax consequences to reward employees, then those consequences will still apply. Multiple charges to tax and National Insurance can result, see ERSM60010.