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FAQs: setting up an EMI scheme

Your employees can have a significant impact on your business, so encouraging them with an incentive scheme will mean that they are more willing to fully invest themselves and their expertise in the business. Even as an early-stage business there are options available to you such as the Enterprise Management Incentives (EMI) schemes. It can seem complex, but with the tax advantages available to both you and your employees it’s worth taking a closer look. Here we answer your frequently asked questions about setting up an EMI scheme, from the qualifying criteria to the registration process, and how it could benefit your business.

What is an EMI share option scheme?

An EMI scheme is a way of rewarding employees of small, usually high-risk, companies, with the option to purchase shares at a price agreed in advance. When the value of the company (and so the shares) later increases, they can benefit from exercising their options and then selling their shares at a profit, with very favourable income tax, NICs and capital gains tax treatment (subject to meeting certain conditions).

How do EMI share option schemes work?

There will be certain requirements before the options can be exercised or sold, such as:

  • A certain period of time occurring between the option being granted and exercised, or
  • The employee holding the share options having fulfilled a certain duration of employment, or
  • The company being sold.

The EMI options will also be governed by the EMI plan rules that the company has established and/or by the terms of individual EMI option agreements which will state the main terms of how and when the option may be exercised.

What are the benefits of EMI schemes?

EMI share option schemes are an efficient and effective way of attracting and retaining talented staff in high-growth or high-risk businesses, to motivate and reward them for their hard work in an environment which is often more demanding than a usual 9-5 job. By giving share options in a company rather than cash remuneration, employees are more likely to be more invested in the growth and success of the business as they stand to profit directly as a result.  

*prices correct at time of filming.

Are EMI schemes tax deductible?

Shares in an EMI scheme have favourable tax treatment. There is no income tax due on grant of the option (regardless of the exercise price, whether this is market value or discounted), or on exercise – provided the option is granted at market value and the relevant conditions are met.

Instead, capital gains tax (CGT) is payable upon the disposal of the shares in respect of any chargeable gain. An employee stands to profit from their options when the company’s value increases and the employee exercises and then sells their shares at the increased market value – without the added burden of income tax deductions on the profits.

What are the limitations or restrictions of EMI schemes?

EMI schemes are actually quite flexible. However, there are some conditions and requirements. These include:

  • EMI options can’t be granted to non-executive directors or consultants – only employees.
  • The maximum value that an employee can hold in unexercised shared options is £250,000 in any three-year period. Anything above this amount won’t qualify for the favourable tax relief.
  • The types of shares over which options are granted must be ordinary shares that are fully paid up. They can’t be convertible or redeemable shares. They can be either newly issued shares or existing shares that are transferred from a shareholder of the company.
  • Shares cannot be transferred, other than to personal representatives. The shares can only be exercised within 12 months of death of the employee.
  • The total initial market value of all unexercised EMI options held by all employees is limited to £3 million.
  • The option must be able to be exercised within ten years of it being granted.
  • If the company is part of a group, only the parent company can grant the EMI shares.

It is also worth a company setting out in its EMI option agreements exactly when the options will vest or lapse or whether there is a particular exercise period, for example often an employee’s option will lapse within a certain amount of time after they are no longer employed by the company.

What is the legislation that governs EMI options?

The legislation that governs EMI share option schemes is known as the EMI Code and is contained in the Income Tax (Earnings and Pensions) Act 2003, sometimes known as ITEPA 2003. The relevant parts in this legislation that relate to EMI option schemes are:

  • Part 7, Chapter 5 ITEPA 2003, sections 471-478 (concerning basic taxation and provisions on taxation)
  • Part 7, Chapter 9 ITEPA 2003, sections 527-541 (concerning income tax exemptions and reliefs for EMI options, and the effects of disqualifying events)
  • Schedule 5 ITEPA 2003 (detailed provisions on the requirements that must be met for options to be considered EMI options and sets out how to notify EMI options to HMRC)

What are the qualifying criteria for employees?

To qualify for an EMI share option, an employee must:

  • Be an employee of the qualifying company or one of its qualifying subsidiaries (so as stated above, non-executive directors or consultants are not eligible).
  • Work (or be committed to work, for the company with the exceptions of sick leave or parental leave and so on) at least 25 hours a week, or 75% of their working time (if less than 25 hours).
  • Not have a material interest in the company that is issuing the shares or its related companies and not own or control more than 30% of the share capital of the company (or any other company belonging to a qualifying group of companies).

In addition, the employee can only hold EMI options of a value up to £250,000, based on the total initial market value of the shares that are subject to the EMI option at the date of grant. The employee can hold SAYE options alongside EMI options, if they are HMRC approved. However, they can only hold an option in a Company Share Option Scheme (CSOP) if the total of the CSOP and EMI options together is under £250,000.

What are the tax benefits for an employee?

Provided that the employee is granted a share option at market value (and not at a discounted price) and the other conditions of the EMI Code are met, they will be liable to pay only CGT on selling the shares in respect of any chargeable gain, rather than being subject to much higher income tax rates (potentially up to 45% dependent on their individual tax threshold) on exercise of the options. The employee can also use their annual CGT exemption.

The table below summarises the tax treatments available:

No income tax liability.  No income tax liability if the exercise price was the market value of the shares or more at grant.  CGT may be payable on any gain over the market value at grant.  
No National Insurance Contribution if no income tax is due.If the exercise price was less, then income tax is due on the difference between the exercise price and the market value at grant.  Business asset disposal relief may also be available subject to conditions.  
 No National Insurance Contribution if no income tax is due. 

What happens to EMI shares if an employee leaves or is made redundant?

Often an employee who leaves the company through circumstances such as dismissal (so called ‘bad leavers’) may lose their option to purchase shares. But the EMI plan rules, or the EMI option agreements could state otherwise. A distinction can be made for ‘good leavers’ in the EMI plan rules or the EMI option agreements and provided an employee is permitted to exercise its option within 90 days of leaving the company, the tax advantaged status of the option can (usually) be preserved.

Is Business Asset Disposal Relief available on EMI options?

Yes, Business Asset Disposal Relief can apply to EMI options, if the employee qualifies and provided that the option has been held for at least twelve months. If the employee qualifies for Business Asset Disposal Relief, they can benefit from paying the reduced 10% rate of CGT on any gains up to £10million.

What are the qualifying criteria for companies?

To qualify for EMI schemes, companies must meet certain conditions. Each time an EMI option is granted, the company must:

  • Have fewer than 250 employees (or the full-time equivalent).
  • Be independent – that is, not a 51% subsidiary of another company, or controlled by another company.
  • If the company has its own subsidiaries, it must own and exclusively control all those subsidiaries (owning more than 50% of the ordinary share capital), and those subsidiaries must also qualify.
  • Have gross assets of no more than £30million – this is a consolidated valuation of the gross assets of the group, without any liabilities deducted.
  • Be trading, or preparing to trade, on a commercial basis with a view to making profits, in a qualifying trade and not substantially (more than 20%) in trades relating to ‘excluded activities’.
  • Have a UK permanent establishment, or, if the company is a parent company that owns a group, one of its subsidiary companies (which must also meet the qualifying criteria) in a qualifying trade must have a fixed business place or agent in the UK.

What is a qualifying subsidiary?

A subsidiary is any company which the holding company controls, either solely or with a connected person. A subsidiary qualifies if it’s a 51% subsidiary of the holding company, and no other party controls it, except the holding company or another one of its subsidiaries. Property management subsidiaries won’t qualify unless they are a 90% subsidiary of the holding company.

The holding company can have minority shareholdings – which won’t be regarded as a subsidiary. However, it can’t have a joint venture holding as a subsidiary.

What are ‘excluded activities’ in relation to EMI schemes?

To be eligible to offer an EMI scheme a company must carry on a qualifying trade. This is a commercial trade that is performed with a view to making profit and that is not made up only or substantially of ‘excluded activities’. HMRC usually takes ‘substantially’ to mean more than 20% of the company’s trading activities.

However, the law can be very complex. If your company is a parent company and excluded activities make up more than 20% of your entire group’s trading activities, or if, for example it reinvests its own cash back into investment portfolios, it could then be regarded as engaging in financial activities, which are on the list of excluded activities. This is why it’s always advisable to seek expert legal advice.

What are the tax benefits of EMI schemes for a company?

A corporation tax deduction may be available when EMI options are exercised (under Part 12 of the Corporation Tax Act 2009). The company may be able to claim relief that is the value of the shares under the option at the date of exercise less the exercise price (basically the same amount as any gain made by the option holder), in the accounting year in which the options were exercised.

How to set up an EMI scheme

To set up an EMI scheme, you will need to supply the following information:

  • Names of employees to be included in the scheme.
  • How many share options each employee will be granted?
  • Details of the time frames and conditions for exercising their options and buying the shares.
  • Prices and costs of the options, and valuations that informed those prices (if available).
  • Your last 3 years’ accounts (or fewer if your business is a new start-up).
  • Any shareholders’ agreements and articles of association.

What are the set-up costs of an EMI scheme?

There are two main parts to administering an EMI scheme:

  1. The establishment of the scheme and the preparation of its documentation, in order to register the scheme with HMRC and to grant EMI options. This includes applying for a valuation with HMRC, applying for advance assurance that the company qualifies to grant EMI options, preparing all EMI option scheme documentation and notifying the grant of EMI options to HMRC).
  2. Annual reporting obligations to HMRC.

You may also want to factor in the legal costs of setting up an EMI scheme too. For a more specific quote and to set up an initial consultation with our employee incentive arrangement specialists, get in touch.

Do the shares need a valuation?

Yes, it is highly recommended that if the company is unquoted, then the market value of the shares is agreed with HMRC prior to granting any options (only options granted at market value will attract the favourable tax relief upon exercise).

If there has been a recent arms’ length share issue by the company, we can use this price as a starting point to agree a market value price with HMRC. It is often possible to agree a discount on such starting point of around 50% – 60%. Alternatively, the company can appoint either an accountant or a professional valuer to calculate the value of the shares.

Once agreed, the valuation is valid for 60 days from the date of issue, so the options must be granted within that period.

If the company is a quoted company, HMRC will accept the mid-market value of the shares on the date the option is granted.

Is prior approval required from HMRC for setting up the scheme?

No, prior approval is not needed. It is, however, possible to obtain advance assurance from HMRC that the company qualifies to grant EMI options. The scheme must be registered with HMRC once options have been granted. This must be done through the employment-related securities (ERS) Online Service. We can help with this if required.

As well as registering the scheme, HMRC must be notified of the grant of an EMI share option within 92 days of the date it was granted.

If an EMI option is not notified to HMRC within this time limit, the tax benefits of the option could be lost.

Is a shareholders’ agreement needed to set up an EMI scheme?

A shareholders’ agreement is not required in order to establish an EMI scheme. However, we would always recommend that a shareholders’ agreement be put in place where multiple shareholders exist, particularly if there are different levels of investors in the company with different rights and vetos.

What is a disqualifying event?

A disqualifying event is an event that affects the tax advantaged status of an EMI option. If the share option is not exercised within 90 days of a disqualifying event, the tax advantages for the employee will be restricted.

Disqualifying events include:

  • The company ceasing to be independent (for example, it is owned by or becomes a subsidiary of another company).
  • The company’s trading activities falling substantially (for example, more than 20% of its total trading activities) into the list of excluded activities.
  • The employee no longer qualifying – for example, they cease to be an employee or no longer satisfy the working time commitment of 25 hours a week (or 75% of their working time).
  • The option being altered, either to increase the underlying value of the share, or so that it no longer meets the requirements of the legislation that governs the scheme.
  • The share capital of the company being changed so that it no longer qualifies.
  • The shares being converted to a class that no longer qualifies.

Is there a deduction or relief on corporation tax with an EMI scheme?

Yes, the operating costs of the scheme can be a deductible expense on the company’s corporation tax. As stated above, companies can also receive a corporation tax deduction when the employee exercises their option. This deduction will be equal to the market value of the exercised shares, minus any payments received by the company from the employee.

Does an annual return have to be filed on an EMI scheme?

Yes, an annual return must be filed by 6th July following the end of the preceding tax year. This must be done online via the ERS Online Service. We can assist with this if required.

Find out more

Arrange a free, no-obligation initial consultation on implementing an EMI scheme in your company by calling us on 0800 689 1700 or completing this short contact form. We aim to respond to all enquiries within 24 hours.

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