We are all acutely aware of the difficulties that businesses are currently facing in accessing finance. On the one hand, we have the government proclamations that the UK massively reliant on small businesses and entrepreneurial spirit but, on the other hand, banks are still not lending sufficiently, as their main focus is to build up their capital reserves. Small business and the economy are suffering as a direct consequence of the banks’ unwillingness to lend.
The government is in ongoing dialogue with the banks regarding their lending policies but is also encouraging businesses to explore alternative means of finance, one of which is the 'Business Angel'. A business angel is defined as a wealthy individual who provides finance to companies in exchange for a share of the companies’ equity.
As far as tax breaks go for this type of investor, the Enterprise Investment Scheme (EIS) is targeted at precisely this kind of financing arrangement. EIS has been with us for a long time now but, due the current reluctance of the banks to lend, is of considerable more relevance now than it was maybe ten years ago.
The newly-formed Office of Tax Simplification (OTS) has identified EIS as one of the main reliefs requiring urgent simplification.
The tax reliefs available under EIS are actually very generous and we will consider these in more detail later.
However, many businesses and investors have been reluctant to use it which brings us to the main problem with the EIS. The scheme is so complex and full of traps, that it is an immediate turn-off for many would-be investors and businesses alike. In the early days of EIS (and its predecessors, the Business Start-Up Scheme and Business Expansion Scheme) the system was quite open to abuse and so, over the years, more and more anti-avoidance legislation has been thrown into the mix, making for a really complicated set of rules.
It has also historically been an extremely high-risk area for accountants and tax advisers and HMRC have historically been fastidious in applying the rules to the letter which can often result in difficulties.
What the business community is crying out for is a radically simplified set of rules to make EIS a far more attractive proposition for investors and businesses alike.
Due to the complex nature of the EIS legislation, it is difficult to condense the rules easily but let us try. These are the rules as they applied prior to the 2011 Budget. The Budget changes are summarised at the end of this article.
The EIS scheme allows a company which meets certain conditions (a qualifying company) to raise funds by issuing full-risk ordinary shares to individual investors previously unconnected with the company.
The funds raised must be used to finance a qualifying trade carried on in the UK or for research and development. The funds must be used within 12 months of the commencement of the trade, and this must take place within two years of the share issue.
The trades which qualify are severely restricted so as to exclude trades where the investors' capital is at little or no risk.
In general, an individual who is or has been connected with the company or its trade will not qualify for relief, but business angels may receive a reasonable remuneration as a director.
Although there is no statutory clearance procedure, HMRC will on application give an advance opinion on whether a proposed share issue will qualify for relief.
To qualify for the tax reliefs, an investment needs to be made by a qualifying individual in a qualifying company.
An individual is eligible for EIS relief if he subscribes for relevant shares in a qualifying company with which he is not connected.
For the purposes of establishing whether an individual is connected with a company, a 30% test applies. If an individual, together his associates, holds more than 30% of the share capital, loan capital, voting rights or rights on winding-up, they will be 'connected' and therefore not eligible for relief under the scheme.
'Associates' are any partner or relative of the investor and, in certain circumstances, trustees and personal representatives of trusts/estates in which the investor was either settler or had an interest.
Irrespective of the 30 per cent test, an individual is connected with the issuing company if he, or any associate, is an employee or partner of the issuing company or any of its subsidiaries at the time of issue.
An individual is also connected with the issuing company if he is a director (unless unpaid) of that company or of a subsidiary or partner of that company. Business angels, who have had no previous connection with the EIS company, may receive a 'reasonable remuneration' for their services as a director. However, new companies are not excluded in the legislation. It would therefore appear to be acceptable for a small group of individuals to set up a new company, be paid reasonable remuneration for the services they provide to the company and claim EIS relief for their investment. However, care must be taken that at the time of the issue of their EIS shares they are not already connected with the company or its trade.
The rules start to get really complicated when looking at the requirements for a qualifying company. The main rules are outlined below are an 'in a nutshell' version of the rules, which run to many pages of legislation.
For shares to be eligible for EIS relief, the company must:
Most trades will qualify as a 'qualifying trade'. However, certain trades are excluded by legislation. The excluded, non-qualifying trades are as follows:
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 per cent of the company’s activities.
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.
The Enterprise Investment Scheme (EIS) is administered in HM Revenue & Customs (HMRC) by the Small Company Enterprise Centre (SCEC).