Common SEIS and EIS Mistakes

Jonathan Lea June 16, 2020

Common SEIS & EIS Mistakes

The rules surrounding SEIS/EIS are complex and we advise that before making an advance assurance application you seek professional advice.

The SEIS/EIS qualifying criteria and rules are centralised within the Venture Capital Schemes Manual, with the rules being dispersed among numerous different sub-manuals. HMRC also have a tendency to update the guidance manuals with little warning and move certain aspects between different sub-manuals, so the rules (as well as the way HMRC enforces the rules) is constantly changing.

It is therefore essential that you consult a professional firm to advise on your application so as to avoid your SEIS/EIS advance assurance application being rejected or your investors having their tax reliefs inadvertently withdrawn.

In this blog post we outline the most common SEIS/EIS mistakes that we see in practice.

Overly complex and long business plans / pitch decks

We have in the past been presented with pitch decks that are over forty pages in length and it is also common to see documents that contain detailed and complex financials relating to the company’s business. We always advise our clients to keep business plans as simple as possible for the purposes of an SEIS/EIS advance assurance application – in the past, a high-level executive summary of up to three pages in length has been sufficient from HMRC’s perspective, so long as it enables HMRC to understand the company’s business and outlines clearly how the investment monies will be spent.

If your company is hoping to raise investment and is in the process of preparing a business plan / pitch deck type document, we recommend reading our blog post on what this document should and should not include (in the context of SEIS/EIS advance assurance).

The type of information that your investors will want to see is different from what HMRC will expect the business plan to include and by all means you can have two separate pitch decks – one for presenting to investors and a watered down version to provide to HMRC as part of an SEIS/EIS advance assurance or compliance statement application.

Investor loans

In order to qualify for SEIS/EIS tax reliefs, at no point during the period from the company’s incorporation to the third anniversary of the date of the share issue can there be any loans to the investor or their associates which are linked to their subscription for shares in the company. This is confirmed in the context of SEIS in VCM32050.

In the context of EIS, VCM11030 confirms that no tax relief is available where the investor, or any associate of theirs (as defined in VCM11100), receives a loan from any person which would not have been made, or would not have been made on the same terms, were it not for the EIS investment (and this loan is received during the period from the company’s incorporation to the third anniversary of the date of the share issue).

The SEIS/EIS investors need to be investing on the understanding that they are providing capital so as to enable the company to grow and develop over the long term, and that they may not receive a return on their investment. The only way that an investor would make a return on their investment is if the company is purchased by a third party at some point in the future, given that there is no proven market for shares held in private limited companies.

SEIS/EIS tax reliefs are available to investors who provide fully at-risk capital to qualifying companies, and therefore if they are investing on the understanding that they will be paid back within a given period or by a certain date (i.e. they are loaning the money to the company), then such investors will not be eligible for SEIS/EIS tax reliefs.

Investor protections

Your investors must invest for cash in return for full-risk ordinary shares in the capital of the company seeking the advance assurance or submitting the compliance statement (and the cash must be paid in full by the time the shares are issued). VCM33020 confirms that the shares issued to investors must be ordinary shares which, during the period from the date of issue of the shares to the third anniversary of that date, carry:

No present or future preferential right to dividends where either:
- the rights attaching to the share include scope for the amount of the dividend to be varied based on a decision taken by the company, the shareholder or any other person. Note: this exclusion covers only those shares which carry preferential rights and does not therefore prevent the voting of dividends in respect of non-preferential shares, nor does it prevent shareholders from choosing to waive a dividend payment should they wish to do so; or
- the right to receive dividends is ‘cumulative’ – that is, where a dividend which has become payable is not in fact paid, the company is obliged to pay it at a later time, normally once funds become available.
No present or future preferential rights to the company’s assets on its winding up; and
No present or future right to be redeemed.

A right carried by a share is a preferential right if that right takes priority over a right carried by some other share. Therefore, where a company has only one class of issued share capital no shares carry any preferential right.

The rights carried by ordinary shares may in some cases be preferential as compared with the rights of deferred shares, but this is not necessarily so. On this point, HMRC confirm in VCM33020 that, where deferred shares carry a purely theoretical right to a residue of assets in a winding up (for example where, in the case of a very small company, after the first £20 million has been distributed to ordinary shareholders the deferred shareholders are entitled to 1p per share), they do not regard the ordinary shares as carrying a preferential right.

In addition, where a company has two classes of issued share capital, and dividends are declared on one class but not on the other, the right of the former class is not a preferential right.

If the shares issued to an investor carry such preferential rights to dividends or upon liquidation of the company, HMRC will view this as an attempt to de-risk their investment, which would disqualify any investors in receipt of such shares from being eligible for SEIS/EIS tax reliefs.

Note importantly that it is possible for a company to have a liquidation priority provision within its articles of association and remain eligible for SEIS/EIS tax reliefs (provided that the provision is drafted well enough). Please click here for an SEIS/EIS compliant liquidation priority provision which is available to purchase from our e-commerce shop.

Marketing the company as a “risk free” investment opportunity

While marketing the investment opportunity in this way may help to convince/encourage investors to subscribe for shares in your company, HMRC will reject an application outright if the investment opportunity is marketed as being “risk free” or of low risk.

This is because (arguably) the most important SEIS/EIS qualifying criterion is the risk-to-capital condition. You can find more about the condition here, but generally it comprises of two parts, and an investment must meet both parts, which are:

a) the company in which the investment is made must have objectives to grow and develop over the long term; and

b) the investment must carry a significant risk that the investor will lose more capital than they gain as a return (including any tax relief).

If the investment opportunity is marketed as being completely free of risk or even low risk then HMRC will certainly come to the conclusion that the company in question does not meet the risk-to-capital condition and will reject any application for advance assurance or any compliance statement submitted on that basis.

In VCM8542. HMRC state as follows on this point: “This factor considers what a potential investor (or their adviser) would expect in terms of the risk profile of the investment, based on how the investment opportunity is marketed.

Many capital preservation investment opportunities are marketed as short-term investments with low risk and good returns and, by itself, the content of such marketing material is likely to indicate that a capital preservation activity is intended”.

Note that “capital preservation investment opportunities” will not qualify under SEIS/EIS given that they will not meet the risk-to-capital condition.

Carrying out a trade which HMRC could determine to be operating on a “project basis”

This is where the first part of the risk-to-capital condition (identified above) becomes relevant. This is that the company hoping to qualify for SEIS/EIS must have objectives to grow and develop its trade over the long term.

Generic indicators of growth ambition would include plans for increasing, over time:

revenues;
customer base; and
number of employees.

However, there may be other indicators depending on the specific circumstances of each company’s activities. In essence, the SEIS/EIS investment monies must be utilised in a way intended to enable the company to grow and develop.

There is no definition of ‘growth and development’. Instead, HMRC states that the phrase takes its ordinary meaning. Therefore, there are no hard and fast rules as each company will grow and develop in its own way depending on its own circumstances. You will need to explain in the application how your company expects to grow in relation to its own circumstances.

Similarly, there is no definition of what is meant by ‘long term’. The schemes are intended to encourage patient capital and investors are expected to be investing for the long term. The three-year holding period for shares subscribed for under the SEIS/EIS regimes is the minimum holding period; in general, patient capital investors would be expected to hold their shares for longer, subject to the company’s need to expand.

Any indication that the company’s future operation or existence could be compromised to enable investors to exit their investment will be considered by HMRC to be contrary to any stated objectives to grow and develop in the long term.

A company that is set up solely to deliver a project, or a series of projects (i.e. a Special Purpose Vehicle / “SPV”) that will generate a certain amount of money once the project is complete, such as a reasonably steady income stream or gains on disposal of the asset created, would not be considered to have objectives for long-term expansion. This rule is one of the reasons why HMRC take issue with Film/TV production companies.

HMRC acknowledges in VCM8540 that the use of SPVs within a group structure is a necessary and usual part of commercial practice for some sectors, and that they will take into account sector-specific practice when determining whether the risk-to-capital condition has been met.

A parent company that uses wholly-owned subsidiary SPVs may meet the risk-to-capital condition. This is as long as the group retains the capital, and the profits from the SPV’s activities are used to continue to grow and develop the group’s trade in the long term, rather than enabling investors to exit their investments.

A parent company that uses SPVs within a group structure to carry out projects initiated and developed by other people will not be considered to meet the risk-to-capital condition. In that situation, the parent company is acting merely as a shell for the delivery of a series of projects.

Therefore, any references to SPVs within your SEIS/EIS advance assurance or compliance statement application should be coupled with compelling arguments such that the company is not operating on a project basis. In addition, the company will need to set out its growth and development objectives in its business plan.

Issuing SEIS and EIS qualifying shares on the same date

One of the most important requirements is that there should be completely separate paperwork in relation to the issue of the SEIS and EIS shares. SEIS shares should be issued prior to any EIS shares.

If you issue SEIS and EIS shares on the same date, the SEIS shares will not qualify (note that if all shares are issued on the same day that it may be possible to claim EIS in respect of all the shares but HMRC will not accept an SEIS claim).

Erroneous filings made at Companies House (such as Form SH01’s to record the issue of new shares, written shareholder resolutions etc.) are not easily corrected. A court order is usually required to remove such filings (if they cannot be corrected by the filing of a Form RP04), and obtaining a court order is costly, time consuming and hard to achieve in practice.

High-levels of subcontracting

While it is standard industry practice for companies to sub-contract out some of its trading activities for which it does not have the expertise in-house, your company should not sub-contract the majority of its trading activities to third parties.

If the company’s trade is mostly or entirely subcontracted, HMRC confirm in guidance manual VCM8560 that the company is unlikely to meet the risk-to-capital condition in those circumstances.

You should therefore avoid subcontracting out trading activities which the company could do itself in-house using its own employees.

In VCM8542 (link provided above), HMRC state as follows on this point: “Where an investee company subcontracts all or most of its activities to others, this may indicate capital preservation activity.

The use of subcontractors may not, by itself, point to capital preservation; a company may not have all the skills it requires in-house and it may therefore make commercial sense to subcontract certain activities to other businesses or individuals.

However, capital preservation may be taking place if the company holds assets but subcontracts all or most of its trading activity, and where decisions about the business are made largely by others, for example external industry specialists, fund managers or the ultimate customer. The existence of arrangements sub-contracting a company’s operational and management decision making would also indicate that the company is incapable of long term growth or development as a trading company”.

SEIS1 / EIS1 form errors

If your company applies for advance assurance in respect of both SEIS and EIS, it will have the freedom to decide how to allocate the investment monies amongst its investors (which will ultimately dictate which investors get SEIS tax reliefs and who gets EIS tax reliefs).

However, once this allocation has been confirmed within an SEIS 1 or EIS 1 compliance statement, it cannot be changed. For example, say that a company raises £200k and secures advance assurance for both SEIS and EIS. Suppose that the company raised the £200k from four investors who all put in £50k each. In this case, only three of the investors would be able to claim SEIS tax reliefs (given that the lifetime SEIS limit for qualifying companies is £150k), with one investor having to agree to receive EIS tax reliefs only.

If the company then put down Investors 1, 2 and 3 on the SEIS1 compliance statement, with Investor 4 on the EIS1 compliance statement, once submitted and approved by HMRC Investor 4 could then not subsequently be issued with SEIS shares and claim SEIS tax reliefs.

In addition, if an EIS1 form is mistakenly submitted in respect of what were intended to be SEIS shares, this cannot be reversed and HMRC will not accept a claim for SEIS instead (although the EIS claim should be upheld). If the reverse happens and instead you submit an SEIS1 form in respect of shares that were intended to be EIS shares, this will not matter and an EIS1 form can subsequently be submitted instead.

Hiring most employees under part-time roles or on a consultancy basis

HMRC want to see evidence that the company has objectives to grow and develop its trade in the long term. Recruiting employees on full-time, PAYE contracts indicates that the company has such objectives. HMRC have a tendency to request that the company provides its PAYE reference number so as to evidence that it is registered for PAYE, which suggests that the company intends to recruit people under full-time, PAYE contracts.

On the advance assurance application form, you have to declare the number of full-time employees that the company will have at the time the shares are issued to investors (note that for SEIS the company can have no more than 25 full-time employees in order to qualify and under EIS the number is 250).

If the company has few full-time employees, with the majority of its employees working on a part-time or consultancy basis, HMRC may take this as an indication that the company does not have objectives to grow and develop its trade in the long term.

Share buyback / repayments of share capital

VCM15010 confirms that EIS relief for EIS shareholders will be reduced (or perhaps withdrawn entirely) where, during the period beginning twelve months before the issue of the shares and ending immediately before the third anniversary of the date of issue of the shares (i.e. Period C – see VCM10540), the company purchases any of its own shares from a member who has not had relief (i.e. the company has bought back non-EIS shares from a non-EIS shareholder).

VCM15090 also confirms that the relief obtained by an individual in respect of shares of a company may fall to be reduced where, within Period C, the company redeems or repurchases shares in it belonging to another person and that person does not suffer any withdrawal of relief under the EIS as a result.

Joint ventures and partnerships

Although not expressly prohibited under the SEIS/EIS regimes, if the issuing company is carrying out a trade under a joint venture arrangement with another company then there are various legislative requirements which underpin these schemes which may cease to be met.

For example, VCM34040 confirms that, throughout the period beginning with the date of issue of the shares and ending immediately before the third anniversary of the date of issue of the shares, the new qualifying trade and any preparation work or research and development leading to it must be carried on by the issuing company itself or by a qualifying 90% subsidiary. Clearly, if operating under a joint venture arrangement it is unlikely that the issuing company would be able to satisfy this qualifying condition.

In addition, VCM13100 sets out the independence test which states that the company cannot be a 51% subsidiary of another company (i.e. another company must not directly or indirectly hold more than 50% of the ordinary share capital of the company). Moreover, as set out in VCM34140, any subsidiary of the issuing company must be a ‘qualifying subsidiary’ (note that a company is a qualifying subsidiary if it is a 51% subsidiary of the issuing company). Note also that VCM34080 provides that the company must not, at any time from the date of the company’s incorporation to the third anniversary of the date of the share issue, control, whether on its own or together with any person connected with it, any company which is not a qualifying subsidiary of the issuing company. Again, under a joint venture arrangement, depending on how it is structured there is a risk that these SEIS/EIS qualifying conditions will cease to be met also.

In business plans we often see references to ‘partners’ and company’s often claim that they are operating ‘in partnership’ with another company. The term ‘partnership’ has a specific legal meaning in the UK and should not be used in any documentation which will be submitted to HMRC as part of an SEIS/EIS advance assurance or compliance statement application.

This is because VCM34090 provides that neither the issuing company nor any qualifying 90% subsidiary may be a member of a partnership at any time during the period beginning with the date of incorporation of the company (or two years before the date on which the shares are issued if that is later) and ending the day before the third anniversary of the date of issue of the shares.

‘Partnership’ is defined at section 257DH (2) of the Income Tax Act 2007 (“ITA 2007”) as including a limited liability partnership, or any entity established under the law of a territory outside the UK which is similar in character to a partnership.

SEIS/EIS qualifying periods

In order to qualify for SEIS, the company must not have been carrying out its qualifying trade for longer than 2 years. Under the EIS, the trade must not have been carried out for more than 7 years.

These qualifying periods do not become ‘active’ until the company has had its first commercial sale (i.e. until the company has commenced trading), and importantly this date is not necessarily the date that the company was incorporated.

VCM8151 states that “The first commercial sale is defined by reference to the European Commission’s Guidelines on State aid to promote risk finance investments. Paragraph 52(xi) of the Guidelines defines a first commercial sale as “the first sale by an undertaking on a product or service market, excluding limited sales to test the market””.

This guidance manual goes on to say that: “In most cases the date of the first commercial sale is likely to be at or around the time the company starts to trade but in some cases it may be later than the date the company starts to trade. A company may use the date of commencement of trade, or the date the business was started, rather than the date of the first commercial sale for the purposes of applying the maximum age rules if it wishes. The date of commencement of trade and the date the business was started will always be a date earlier than, or the same date as, the first commercial sale. It follows that using the date of the first commercial sale provides a more generous timescale for companies able to identify that date”.

VCM8151 also provides various examples to illustrate the concept of the first commercial sale in the context of a start-up company with no subsidiaries and which has never traded through a business which it acquired from another person. Example 16 provides as follows:

“Company A is incorporated on 1 January 2015 to carry out domestic roofing work. The company’s first supply to a customer is on 31 March 2015. The company builds up its expertise and reputation and in September 2020 it wants to expand into roofing historic buildings. It needs money to engage specialist staff and buy new tools and equipment. Its first commercial sale was on 31 March 2015, less than 7 years earlier. The company meets the age condition”.

Therefore, you should carefully consider when the company commenced trading as you may have more or less time than you thought to apply for SEIS/EIS advance assurance or submit a compliance statement. Essentially, the date you will have commenced trading is the date that your company began actively seeking customers.

What we often see in practice is newly incorporated companies that have essentially purchased an existing business (or its goodwill and intellectual property), with the intention that the newly incorporated entity will carry on the old company’s trade and seek SEIS/EIS advance assurance.

One of the requirements under the SEIS/EIS is that the issuing company must be carrying out a ‘new qualifying trade’, which is defined as being one which has not been carried on by either the company or by another person for longer than two years (for SEIS) or seven years (for EIS).

Therefore, if a company is incorporated in order to carry out a historic trade, regardless of the fact that the company making the advance assurance application is newly incorporated, HMRC would likely determine this to be a continuation of trade and therefore decide to reject the application for SEIS/EIS advance assurance for not meeting the ‘new qualifying trade’ requirement.

CGT disposal relief

If disposal relief is due then an investor will not have to pay Capital Gains Tax (“CGT”) on any gain made on a disposal of their SEIS/EIS shares. In order to receive disposal relief, the following conditions have to be met:

The investor must have held the SEIS/EIS shares for at least three years; and
The investor must have received SEIS/EIS tax relief in full on the whole of their subscription for the SEIS/EIS shares and none of the income tax relief must have been withdrawn.

This CGT exemption is part of HMRC’s anti-avoidance rules and is in place to prevent SEIS/EIS investors from subscribing for qualifying shares, claiming tax reliefs in respect of the same and then disposing of them shortly afterwards.

Receiving royalty or licence fees

There are various excluded activities under the SEIS/EIS regimes, which are set out in VCM3010.

Excluded activities cannot amount in aggregate to a ‘substantial part’ of the issuing company’s trade. Unhelpfully, no definition of the phrase ‘substantial part’ is provided within the relevant legislation. But where, judged by any measure which is reasonable in the circumstances of the case (for instance, by reference to turnover or capital employed), such activities account for no more than 20% of the activities of the issuing company’s trade as a whole, HMRC will normally accept that they are not ‘substantial’.

Under VCM3060, one of the excluded activities is that of receiving royalties or licence fees. The receipt of royalties or licence fees can arise in a trade through the exploitation of such assets as trademarks, patent rights, copyright and know-how.

Note that this excluded activity is waived in certain circumstances. The waiver applies where the royalties or licence fees are attributable to the exploitation of certain assets described as ‘relevant intangible assets’. An ‘intangible asset’ for this purpose is anything that could be treated as such under normal UK accounting practice (which is set out in Financial Reporting Standards 10). This will cover all IP as defined in the legislation, and also industrial information and techniques.

An asset is a relevant intangible asset if it, or the greater part of it in terms of value, has been created by the company which has issued the shares. So a company can acquire an asset at an early stage of development and providing the acquiring company (or another in the same group) develops the asset to the point where it has created the greater part, by value, of it, it will subsequently be a relevant intangible asset in relation to the acquiring company. In these circumstances, the waiver to the excluded activity will apply and the issuing company will be able to receive royalties and/or licence fees (regardless of whether receipt of such fees amounts to a substantial part of the issuing company’s trade).

On the other hand, if the issuing company licences its IP to other companies and this amounts to a substantial part of its trade (for example, more than 20% of its overall turnover is attributable to royalties or licence fees), and the issuing company does not come within the waiver to the excluded activity, then the issuing company will be carrying out an excluded activity and will not qualify for SEIS or EIS.

Investors having a substantial interest in the issuing company

If investors wish to receive SEIS/EIS tax reliefs on their investment, they cannot have a ‘substantial interest’ in the issuing company.

The definition of ‘substantial interest’ is set out in VCM32030 as meaning the investor directly or indirectly possessing, or having an entitlement to acquire more than a 30% stake in the company via;

ordinary issued share capital;
voting power;
rights on winding up; or
as having control of the company.

Note importantly that an individual is not regarded as having a substantial interest in a company for this purpose, if the company has issued only subscriber shares (that is, those issued as part of the company’s incorporation) and the company has not yet begun to carry on any trade or preparations for any trade.

Shareholdings of an investors’ associates are taken into account in arriving at the 30% figure. The definition of ‘associate’ is set out in detail in VCM11100 (note that the definition is the same under both SEIS and EIS).

Associates include business partners, trustees of any settlement of which the investor is a settlor or beneficiary, and relatives. Relatives for this purpose are spouses and civil partners, parents and grandparents, children and grandchildren (but not brother and sisters).

There is one exception to the 30% test, which can be found in VCM11080.

You should therefore closely monitor the company’s cap table and ensure that any investors which are hoping to claim SEIS/EIS tax reliefs do not, along with their associates, hold more than 30% of the issuing company’s entire issued share capital.

Advance subscription agreements

As outlined above, investors can only claim SEIS/EIS tax reliefs on an investment in an issuing company where they receive equity (i.e. shares) in return. Loans do not qualify, even if and/or when they convert into equity (i.e. convertible loans do not qualify).

However, advance subscription agreements (“ASAs”) can work where the investment made into the issuing company under the terms of an ASA is purely an equity agreement. The ASA constitutes an agreement that, while the subscription monies are paid at the outset, the shares relating to that investment will be calculated and issued at some point in the future (perhaps during the issuing company’s next investment round).

An investment via an ASA can be made SEIS/EIS compliant due to the fact that 1) the investor’s funds are at risk from the outset and 2) the investor cannot demand the return of their investment because the money paid must be converted into shares in the company.

HMRC issued new guidance on advance subscription agreements on 30 December 2019. The new guidance can be found here (note that the guidance is identical for both SEIS and EIS).

For further information on ASAs, please consult our detailed blog post and note that we also have a template ASA available to purchase from our shop here (note that the template contains optional provisions which can be included to ensure that the agreement is SEIS/EIS compliant).

Company founders, employees and directors

Under the SEIS, company founders may qualify for tax reliefs provided that they are not employees of the issuing company during the period from the date of issue of the shares to the third anniversary of that share issue date (note also that in order to qualify the founder would not be able to hold more than 30% of the issuing company’s shares, unless these were subscriber shares issued at incorporation and the company has yet begun to trade or commenced preparations for any trade, as outlined above).

Note that under the SEIS a company founder may be eligible for tax reliefs if they are an employee and also a director of the issuing company (as an individual is not treated for this purpose as employed by the company if he or she is a director of the company). Please see VCM32020 for the definition of a director.

Under EIS, the rule (contained within VCM11020) is that an individual will qualify for relief if he or she subscribes for shares on their own behalf, or is treated as doing so, and:

is not ‘connected’ with the company at any time during the period beginning with the incorporation of the company, or two years before the date on which the shares are issued if that is later, and ends the day before the three year anniversary of the date of issue of the shares; or
is so connected by virtue of being a paid director of the company, but satisfies the conditions in section 169 of the ITA 2007 (see VCM11070 for how directors can qualify for EIS tax reliefs despite being connected with the company).

The second bullet point above does not apply directly to company founders and relates more generally to investors who wish to become directors of the companies they invest in. VCM11070 states that the rules are not intended to discourage investors who would like to become directors of the company they invest in (or of a subsidiary) and make their business expertise available to it. Such investors are often known as ‘business angels’. Business angels are allowed to qualify for income tax relief despite the fact that they receive payment for their services. However, the rule letting in business angels is tightly drawn.

VCM11050 confirms that an individual is connected with a company if he or she, or any associate, is:

an employee; or
a partner, or an employee of a partner; or
(subject to VCM11070)
- a director; or
- a director of a company which is a partner of the company, or of any company which is at any time during the period beginning with the incorporation of the company, or two years before the date on which the shares are issued if that is later, and ends the day before the three year anniversary of the date of issue of the shares, a subsidiary of that company.

Note that the SEIS/EIS tax reliefs are aimed primarily at third-party investors to encourage external investment in start-ups. For this reason, it is difficult for the founders, employees and directors of an issuing company to claim such tax reliefs.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.