EIS Scheme

Enterprise Investment Scheme (EIS) Explained

Tax Reliefs – Part One – Income Tax Relief

We are often asked to explain the EIS tax reliefs. They are definitely generous and can make any investment more attractive, or at least, help to protect from downsIde risk.  Before explaining the tax reliefs in more detail, a word of caution – you need to make sure you don‘t focus all your energy on understanding the EIS tax rules and remember to do your due diligence on the underlying Investment i.e. its management, the business model, the market opportunities, the competition etc.

There are FOUR EIS primary tax reliefs as follows:

  1. Income Tax Relief (up to 45% upfront income tax relief).
  2. Capital Gains Tax deferral Relief
  3. EIS Loss Relief against Income or Capital Gains (loss set against income to reduce tax).
  4. lHT Relief and Business Property Relief (100% lHT relief after two years).

Income Tax Relief

In order to qualify for Income Tax Relief, an investor must hold a qualifying investment for a minimum period of three years from the date of issue, or when trade commences if later.  In order to claim Income Tax Relief, the investor must not be deemed connected with the issuing company.  A definition of a connected investor is contained below in Note A on page 4.

A qualifying investor will attract UK Income Tax Relief at up to 45% of the investment, subject to having sufficient taxable income.

An Income Tax Saving Example

Mr. Brown has high income in the tax year as a result of which he would owe £45,000 income tax to HMRC.  If Mr. Brown were to invest £100,000 into a qualifying EIS company in the same tax year (or the next tax year), his income tax liability to HMRC would be reduced to zero.  His investment into the EIS company would therefore have effectively cost him £55,000 for an investment in shares worth £100,000.

                                                      Investment in the Company                               £ 100,000 

                                                      Less: Income Tax Relief at 45%                        £ (45,000)

                                                      Net cost of investment into the Company    £  55.000 

In the above example, in the situation where an investor has an Income Tax liability of £45,000 (see Note 1 below) and subscribes for £100,000 worth of ordinary shares in an EIS qualifying company, the resulting Income Tax liability will be reduced to zero, providing the investor meets the qualifying conditions for EIS relief.

This has a significant impact on the potential returns of the investment.  If for example an investor put in £10,000 and got back exactly £10,000 four years later (i.e. the company made no money), the net tax free return would be 10.45% per annum.

It gets better, if for example, the investor put in £10,000 and got back 5% more – £10,500 – four years later, the net tax free return would be 10.7% per annum. If the company lost money, for example 20% – and the investor only gets back £8,000 – the investor still makes money and has a 3.3% annual return.

It should noted that the maximum level of investment qualifying for income tax relief is £1,000,000 per investor in one or more qualifying companies for the 2014/2015 tax year.  As a result, up to £300,000 tax relief can be claimed by the investor, providing the investor has a sufficient taxable income to allow full relief, and makes no other EIS investments in the tax year.

An investor can carry back 100% of their investment to the previous tax year for income tax purposes, subject to the overall annual investment limit of £1,000,000. Therefore, an investment made in 2014/2015 can be carried back to the 2013/2014 tax year.

If an investor chooses to set the relief against their 2014/2015 tax liability and is required to make self-assessment payments account in January and July 2015, it may be possible to reduce the required payments.

Income Tax Relief and Capital Gains Tax Deferral Relief combined:

We will go into more detail on Capital Gains Tax Relief later, however it should be noted that when an investor combines Income Tax Relief with Capital Gains Tax Relief the net immediate cost of the investment is significantly reduced, as the below example demonstrates:

CGT@18%                              CGT@28%

Investment in the Company                                                                 £100.000                                £100,000

Income Tax Relief at 45%                                                                     £(45,000)                               £(45,000)
(See note below)

Capital Gains Tax Re-investment Relief                                           £(18,000)                                £(20,000)

Net immediate cost of investment                                                     £52,000                                   £35,000

In this example the Investor makes a disposal which results in a Capital Gain (ignoring available capital gains tax exemptions and reliefs) of £100,000 and also claims the available Income Tax Relief.  By subscribing for £100,000 of ordinary shares and claiming Capital Gains Tax Re-lnvestment Relief, the investor will defer between £18,000 and £28,000 of capital gains tax, depending on the rate applicable at the time of that disposal.  The rate for 2016 is currently 20%.

Additionally, an income tax credit of £30,000 (subject to having income sufficient to utilise the relief in full) would be available in the tax year that subscription was made.

AT THE TIME OF WRITING (NOV 2016) THE INCOME TAX RATES RUN FROM A SCALE AT THE TOP END FROM 40% UP TO 45% WHERE THE TAXABLE INCOME IS OVER £150,000.  YOU MUST CHECK CURRENT RATES WHEN TAKING OUT AN EIS INVESTMENT.  

Note A: Connected Investors

The rules surrounding connected persons can be compIex and it is recommended that an investor should seek tax advice before making an investment.

In order to qualify for Income Tax Relief, an investor and those connected to him can hold not more than 30% of:

  • The issued ordinary share capital of the Enterprise Investment Scheme company or any subsidiary;
  • The voting power of the Enterprise Investment Scheme company.
  • Be entitled to more than 30% of the assets on a winding up.

Connected Persons include (but not exhaustively) the following:

*  The spouse/civil partner of the Investor individual;

*  A relative of the Investor individual;

  • A partner of a partnership in which the Investor individual is a partner;
  • A partner of a partnership in which the Investor individual Is a partner;
  • An individual who is connected to a company he has control of, or he with persons connected with him, have control of.

The most common situation would therefore be where a married/civil partnership couple may wish to invest.  In these circumstances, their joint investment must represent less than 30% (in the context described above).  For example, if the Enterprise Investment Scheme company is fully subscribed at £1,500,000, the maximum a married/civil partnership couple may subscribe for shares between them is £450,000.

It should be noted that the conditions and reliefs are based on existing law and understanding of current HM Revenue and Customs practices and are therefore subject to change.

Investors are strongly recommended to seek independent professional advice on the tax consequences of acquiring, holding and disposing of EIS qualifying shares before proceeding with an investment into an EIS company.

Reference Notes:

Note 1:  The income tax liability must be derived from sources with refundable tax.  For example, dividends taxed at basic rate carry a 10% tax credit, however, the 10% tax credit IS non-refundable.

Note 2. 30% for 2011/2012 onwards.  40% or 45% from 2016.

PART TWO — CAPITAL GAINS TAX

There are four important EIS tax reliefs:

  •  Income Tax Relief (see “Part One above – Income Tax Relief”).
  • Capital Gains Tax Deferral Relief. Capital Gains Tax.
  • Exemption.
  • Loss Relief against Income or Capital Gains.

1.  Capital Gains Tax Re-Investment Relief 

For qualifying UK investors who have realised gains within the last 36 months, or expect to realise gains in the twelve months following investment,  Capital Gains Tax Re-Investment Relief will be available.  In order to qualify for this relief, the investor must be a UK Resident.  Capital Gains Tax Re-Investment Relief is also available in some instances to Trustees who are UK Resident.

Whilst there is an annual investment limit of £1,000,000 for Income Tax Relief under the scheme, there Is no upper limit for Capital Gains Tax Deferral Relief

(subject to the company raising no more than £5m in a 12 month period from a combination of Enterprise Investment Scheme investors, Venture Capital, Trusts and other forms of State Aid).

The Capital Gains Tax Deferral Relief continues for as long as the Investor holds the qualifying Ordinary Shares.  This is the case even if after three years of (qualifying) trade, the Company changes the nature of its trade to a non-qualifying actIvIty.  When the Investor sells or gifts his shares, the deferred gain will come back in to charge at the rate of Capital Gains Tax applicable in the year of disposal.  Spouse transfers are not ordinarily an occasion of charge.

For example, a subscription for qualifying Ordinary Shares made on 31 October 2014 can be used to defer gains generated from 1 November 2011 to 31 October 2015.  Gains made from 23 June 2010 will attract a capital gains tax rate of either 18% or 28%.  If the disposal qualifies in full for Entrepreneurs Relief (post 5 April 2008), the effective rate of tax will be 10%.

A claim for Capital Gains Tax Re-lnvestment must be made within 5 years and 10 months of the end of the tax year in which the original disposal was made.

Example calculation of Capital Gains Tax Re-lnvestment Relief:

CGT @28%

Capital Gain                                                                           £100,000

Capital Gains Tax Re-Investment Relief                          £(28,000)

In the above example the investor makes a disposal which results in a Capital Gain (ignoring available Capital Gains Tax exemptions) of £100,000.  By subscribing for £100,000 of ordinary shares in an EIS and claiming Capital Gains Tax Deferral Relief, the Investor will defer between £28,000 of capital gains tax.  The current rate (2016) is 20%

Effect on Cost of Investment in an EIS Company:

CGT@28%

Investment into the EIS company                                      £100,000

Less: CGT Re-lnvestment Relief                                         £(28,000)

                  Net immediate cost of Investment                          £72,000

Income Tax Relief and Capital Gains Tax Deferral Relief combined;

CGT@28%

Investment in the Company                                                  £100.000

Income Tax Relief at 30%                                                      £(30,000)

Capital Gains Tax Re-lnvestment Relief£                             (28,000)

                      Net immediate cost of investment                            £42,000 

In this example the Investor makes a disposal which results in a Capital Gain (ignoring available capital gains tax exemptions and reliefs) of £100,000 and also claims the available income Tax Relief. By subscribing for £100,000 of ordinary shares and claiming Capital Gains Tax Re-lnvestment Relief, the Investor will defer £28,000 of capital gains tax, depending on the rate applicable at the time of that disposal.

Additionally, an income tax credit of £30,000 (subject to having income sufficient to utilise the relief in full) would be available in the tax year that subscription was made.

The net immediate cost of the investment has therefore been reduced from £100,000 to £42,000.

THE ABOVE FIGURES SHOULD BE USED AS A TEMPLATE ONLY AS RATES DO CHANGE WITH THE BUDGET SO PLEASE ASK YOUR TAX ADVISER TO REPLACE ANY OF THE ABOVE WITH THE RATES PREVAILING.

2. Capital Gains Tax Exemption

Provided the ordinary shares are held for the minimum qualifying period of three years from the date of issue, or the date the trade commenced if later, any subsequent gain made on the disposal of the ordinary shares will be exempt from Capital Gains Tax:

Realised value of shares after 3 years                                                    £150,000

Less: original cost of Investment in the Company                            £(100,000)

                         Tax free gain                                                                                       £50,000

                         Tax saved, compared to a non EIS share disposal                £14,000

3. Loss Relief against Income or Capital Gains

Share values can also decrease.  In the event that the ordinary shares are held for the minimum 1 qualifying period of three years from the date of issue (or commencement of trade if later) are disposed of for a market value consideration less than the original investment, an allowable loss will arise.

The amount of the loss is calculated after taking into account the Income Tax Relief that remains l allowable. The resultant loss can be set against:

  • Capital gains generated in the tax year of the disposal or thereafter, or
  • Taxable income of the current or preceding tax year.

Any excess loss would subsequently be carried forward and set against future capital gains.

For example, in the event that a £100,000 investment (net of Initial Charge) is made by a 45% tax payer and the whole investment is lost, after taking account of the Income Tax Relief of 30% claimed on investment and the subsequent offset of the loss of £70,000 (ie £100,000 investment less Income Tax Relief claimed) against income, the Investor has only lost 38.5% of the original investment made, assuming all available reliefs can be utilised In full.

Loss Relief Example:

Disposal value of Shares:                                                                                  Nil

Less: original cost of investment in the Company                             £(100,000)

Income Tax Relief at 30%                                                                          £30.000

Loss net of Income Tax Relief                                                                  £(70,000)

Tax Relief at 45%                                                                                         £31,500

                    Net Loss after Tax (i.e. 38.5% of original cost of investment)    £(38,500)

It should be noted that the conditions and reliefs are based on existing law and understanding of current HM Revenue and Customs practices, and are therefore subject to change.

Please also note that the details provided in this section are given for illustration purposes only and do not constitute anticipated performance levels of an investment.

The tax information provided covers only a summary of some of the tax rules and does not constitute tax advice on which an Investor should rely upon solely to make an investment decision.

The level of relief available will be dependent on the individual Investors circumstances and It is recommended that a potential Investor discusses his personal circumstances with a suitably qualified tax adviser and/or Financial Adviser.

Investors are strongly recommended to seek independent professional advice on tax consequences of acquirlng, holding and dlsposIng of Enterprise Investment Scheme qualifying shares before proceeding with an investment Into an Enterprise Investment Scheme company.  It should also be noted that tax rates change so you must ask your adviser to check the current rates for the appropriate years AND ONLY USE THE ABOVE AS A GUIDE TEMPLATE.