How SEIS and EIS Applies To Film Production Companies

Jonathan Lea March 28, 2018

(* Please see further below towards the end of this article regarding our successes, but applying for SEIS/EIS for film production companies has now become a strong niche for our firm and we are confident we can in most cases succeed with these advance assurance applications)

Films can be, and are often, classified as a qualifying activity for the purposes of applying for advance assurance and raising funding pursuant to both the Seed Enterprise Investment Scheme (“SEIS”) and the Enterprise Investment Scheme (“EIS”).

For TV production companies please see, in particular, the last paragraph of this article.

SEIS can be a significant help for start up film companies (as with other qualifying companies) who are looking to attract early investment. Very often, once a company has raised the SEIS limit of £250,000 such funding is combined with further finance provided by EIS investors, subject to a small time gap (to be reflected in the paperwork) between acceptance of the SEIS and EIS monies.

For background, the usual process of investing in a film company takes place as follows:

The film maker sets up a production company after film rights in a script are secured. Note that founders who own more than 30% (together with any family member) of the company will not be eligible for SEIS or EIS.
Investors then put money into the company for the purposes of producing a film. If the company qualifies, applicable SEIS/EIS tax reliefs will apply and the company can also claim other reliefs such as film relief. A subscription agreement should clearly set out the process of exchange and completion in respect of raising the funds and the company will need to ensure that it receives the investment monies prior to issuing the new shares (and the documentation is dated correctly).
The film gets released and royalties are collected by the company. The investors will receive their share of any dividends declared.
The company could eventually be liquidated or sold, although note that the SEIS and EIS investors will need to have held their shares in the company for at least three years for the tax reliefs to apply and their to be no capital gains tax on any sale or liquidation.

On the liquidation of a film production company, note that the SEIS or EIS investor should not normally lose their income tax relief received on subscription. Also, loss relief could be claimed if a loss is suffered and the shares have been held for at least three years.

Companies which are founded in order to produce just one film may not qualify for SEIS and EIS. This is because such companies are set up with a short-term goal and therefore are not perceived as providing a continuing stream of taxable income. The aim of the SEIS and EIS schemes is to facilitate the long term development of businesses so in order to qualify a film production company will need to satisfy HMRC that it aims to create an established brand with ongoing revenue streams.

Film companies will often spend the SEIS and/or EIS monies raised for the production of several different films (by the one company) which are all in early development.

It is not necessary to shoot all or part of a film production in the UK to be eligible for SEIS. Although film companies which have filming locations in several countries should bear in mind that SEIS/EIS applies to UK companies or companies with a UK establishment. HMRC’s guidance on what constitutes a ‘permanent establishment’ can be found here.

Risk to capital condition

The new “risk to capital” condition became effective on 15th March 2018 and depends on a “reasonable view” being taken as to whether an investment has been structured to provide a low risk return for investors. The condition has two parts: (i) whether the company has objectives to grow and develop over the long term; and (ii) whether there is significant risk that there could be a loss of capital to the investor of an amount greater than the net return. This new legislation is intended to target single purpose film production projects with limited growth/return.

HMRC recently published guidance specifically relating to film production companies and the risk to capital condition, see example 3 here.

Important update!

Recent applications we have made to HMRC appear to confirm that since the aforementioned risk to capital condition came into force film and TV companies are finding it very hard to qualify for SEIS and EIS. Particular care needs to be made when applying for advance assurance to show how the HMRC guidelines mentioned above are complied with and the company is not operating on a ‘project basis’. This starts with the company’s business plan which should be written from the outset to comply with the aforementioned ‘example 3’ guidelines (not re-drafted to try and fit in and around them).

HMRC feedback dated 29 January 2019

We recently received a rejection from HMRC in respect of an advanced assurance application we submitted for a film production company several weeks ago. Before we submitted the application we had re-worked some of the company’s business plan to try and make the way it was structured fit in and around the new rules relating to SEIS and EIS.

I share below the reasoning given by HMRC why the application was rejected.

The HMRC inspector stated as follows:

“I consider that it is likely that the anticipated investment will not meet the “risk-to-capital” condition because of the following:

It appears from the information memorandum you have supplied that the company is making a number of films which appear to be on a project basis. This being the case the company will fail the requirement of Section 257AAA (1) (a) Income Tax Act 2007 (ITA07) that “the issuing company has objectives grow and develop its trade in the long term”

Whilst I know the company are not necessarily carrying out a defined number of projects, the company are working on a project basis and does not appear to meet the growth and development requirement. Generic indicators of growth would include and are not limited to:

Increasing revenues over time.
Increasing the customer base.
Increasing the number of employees.

It appears from the information provided that the company will make films through various subsidiaries and that they would be made one after another and for similar budgets. From the information that has been provided, I am not satisfied that the company would grow and develop in its own right in the long term.

Whilst the company continues to work on a project basis longer term, it is HMRC’s opinion that it is likely that the anticipated investment will not meet the “risk to capital” condition.

I am therefore declining to give an advance assurance. There is no right of appeal where advance approval is not given.”

This feedback was despite us making detailed submissions (with careful references to HMRC’s own guidelines) that the holding company in this case (with films being made by each subsidiary as per HMRC’s example 3 mentioned above) was structured for long term growth and development and in the process would be increasing its revenues and the number of employees it needed to hire.

We can only assume that HMRC must have decided to take a harder line after they drafted the part of their manual that includes example 3, while for future advance assurance applications that relate to such ‘project basis’ businesses we can only go to even greater lengths to outline, explain and argue in our covering letter (which already runs to several pages for these applications) how the company qualifies for SEIS/EIS.

Ingenious announcement 4 February 2019

Please note that Ingenious recently pulled their media funds as they weren’t able to get advance assurance. As they state in this FT article:

“We are particularly concerned about the difficulty of securing advance tax clearances for film, TV and games businesses following the implementation of a government policy review.”

EIS and TV production companies

On 30th May 2019 we received EIS advance assurance for a TV production company. This took several weeks to achieve and involved supplying a lot of information to HMRC and making some very detailed arguments in our client’s favour. Despite many thinking that HMRC would not now grant EIS advance assurance to film and TV production companies, we therefore now have hard evidence that TV production companies can qualify. In the future we will make reference to this successful application and the arguments we made when advising on and submitting other similar advance assurance applications.

British Film Institute sets up EIS Fund

Despite all of the above and the fact that any film production company is not having much/any luck in getting a SEIS/EIS advance assurance application approved, this article in the FT on 3rd June 2019 outlines how the British Film Institute has launched a new EIS fund, driven it seems by the increasing demand for screen content from the proliferation of streaming platforms (which it is feared the UK’s creative industries risk missing out on).

The new fund will raise £20m in its first year from a range of UK investors. It will be independently run by BFI-appointed fund manager Calculus Capital and Stargrove Pictures, a screen finance company. In the article the CEO of Calculus says the new stringent tax-exemption requirements would not affect the BFI-backed fund because it sought to help companies “develop intellectual property rather than support the production cost of films”.

Film production SEIS/EIS success!

On 25th September 2019 we received confirmation from HMRC that they had finally accepted an SEIS and EIS advance assurance application we submitted for a film production company. Prior to that, after having taken care to structure the application in the right way and provide HMRC with all relevant information, on 24 June 2019 we received a response from HMRC on the same application whereby they didn’t reject it, but in a series of 20 points required a lot of additional information to further assess the application. The most pertinent of these points were as follows:

a schedule all agreements the company has entered into, together with copies of all contracts of service or employment of the founders, all operating or commissioning agreements and an intellectual property transfer agreement;
details of any film tax credit received or to be claimed and confirmation of which company will receive this and into whose account it will be paid;
details of projected employees;
the company’s PAYE reference number;
a list of all film projects that the company has produced or will produce and for each project a schedule of activities that the company directly carries out itself together with a separate schedule of activities that the company instead subcontracts out;
details of how the company acquires or sources the intellectual property to carry out its activities;
details of how any intellectual property that the company owns is treated after the activity has been carried out, for example whether or not the company retains the intellectual property; and
an explanation of how the company’s brand reputation as a film production company will grow by the successful delivery of the projects, ensuring any explanation reconciles with the credit being given to the company and any subcontractors.

Note also that HMRC gave a six week deadline from the date of their letter within which to provide the information, failing which it will be assumed that the company does attempt to carry on with this application. We carefully responded to each of HMRC’s points (including the ones listed above) and as a result of our persistence and diligent, persuasive answers HMRC finally approved the advance assurance application.

Our track record with SEIS/EIS advance assurance

Since the risk to capital rule changes in 2018 (and as at 19th May 2020) we have submitted six SEIS and/or EIS advance applications to HMRC that have related to film and TV production companies. In 2019 alone we submitted just over 70 SEIS/EIS advance assurance applications in total.

Of these applications one submitted in April 2018 was rejected, however there were additional complications with this application (even more so than normal) and we notified our client that rejection would be highly likely (as the application related to a single project). Those involved wanted to proceed regardless which ended up HMRC rejecting the application. The same individuals then set up a new company, applied again through us, and they were subsequently successful (following HMRC’s guidelines throughout). Out of the other five applications, three were approved by HMRC, one has recently been submitted to HMRC and the remaining application did not reach a conclusion, after the client no longer wished to proceed following HMRC coming back with a number of additional questions.

Therefore out of those that have reached a final decision by HMRC we have a 75% success rate (three out of four, although a 100% success rate from July 2018).

The only one that has been rejected from HMRC contained two responses from HMRC but no queries. HMRC had already reached a conclusion and simply asked to provide evidence that their conclusions were wrong and our arguments were, as expected, unsuccessful due to our client’s intentions.

Of the other three that were successful: