Don't get disqualified: how to check your EMI

Posted by admin at 15:52 on 13 Feb 2017

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Companies that operate EMI options, and employees participating in EMI schemes, benefit from significant tax reliefs.  However, companies should be aware that there are a number of events that can cause the options to become disqualified, resulting in a potential loss of the tax reliefs. 

Tax reliefs

Provided the EMI options are granted at market value, there will be no income tax on grant or exercise of the option.  Instead, capital gains tax will be paid on the sale of the resulting shares (usually reduced by the application of entrepreneurs’ relief). The employing company will usually also qualify for a corporation tax deduction equal to the gains made by the employees when the option is exercised.

Effect of disqualifying events

However, the EMI option must qualify for these reliefs by satisfying specific statutory requirements. A number of changes or developments can disqualify an option from EMI relief. These are called disqualifying events. A disqualifying event can restrict tax relief so that the option becomes subject to income tax rather than the more favourable capital gains tax treatment. There is no effect if an option is exercised within 90 days of the disqualifying event.  If the option is exercised more than 90 days after the disqualifying event, the gains in excess of the market value of the shares at the time of the event are subject to income tax (and PAYE and NICs if the shares are readily convertible assets at the time of exercise).

Examples of disqualifying events

There are two types of disqualifying events - those that relate to the Company and those that relate to the option holders.  It is very important to be aware of when these might happen.  Common examples are changes to the company’s articles of association, which could impact on the value of the shares under option; changes to participant’s employment status meaning that they are no longer an eligible employee; company reorganisations or the introduction of new investment agreements which could mean the company no longer satisfies the independence test.

Company

Optionholder

Loss of independence:

Company ceasing to satisfy the independence test

Exception: there is a company re-organisation or the company becomes a 51% subsidiary of another and a qualifying replacement option is granted

Ceasing to be an eligible employee:

-Ceasing to be employed by the company or a qualifying subsidiary; or

-Ceasing to meet the commitment of working time requirement – i.e. statutory threshold of 25 hours per week or 75% of his working time.

 

Ceasing to meet the trading activities test:

Includes the situation where company halts preparations to start to carry on a trading activity or does not begin to carry on trading activities within two years of the grant of EMI options

 

Exceeding individual limit of £250,000:

The aggregate value of all shares under option (taken as the market value at the date of grant) for any single employee must not exceed £250,000

Alteration to the terms of the option if:

It increases the market value of the shares that are subject to the option; or

Results in the statutory requirements for an EMI option no longer being met

 

Alternation to the share capital of the company:

Where rights are broadly created, varied or removed or restrictions are imposed or lifted for the main purpose of increasing the market value of shares that are subject to the option rather than a commercial reason.

 

Conversion of Shares to another class:

If shares under option are converted from one class of share to another class unless specific conditions are satisfied.

 

If you are in any doubt as to the potential effect of corporate events on your EMI options, please contact RM2 directly on 020 8949 5522, or email us via enquiries@rm2.co.uk.