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In X-Wind Power Limited v HMRC [2017] UKUT 0290, the Upper Tribunal (UT) considered whether relief under the SEIS was blocked because the company filed an EIS (rather than SEIS) compliance statement in error. It was.

The FTT held:

On appeal, the UT confirmed the FTT decision.

Comment

Make sure you use the right forms and include covering letters!

The comments (from the FTT) that nothing indicated to HMRC that the first submission should have related to SEIS suggest that the decision could have gone differently if a suitable covering letter had been included. The case does not indicate whether advanced assurance was sought before issuing shares.

This point was endorsed in Fashion on the Block Ltd v HMRC [2021] TC08248 the First Tier Tribunal felt able to treat the decision in X-Wind Power as non-binding as the covering letter and Advanced Assurance application which had been submitted should have made it clear to the HMRC officer reviewing the case that it was SEIS rather than EIS relief that was being applied for.

This was the case in Innovate Commissioning Services Limited v HMRC [2017] TC 06152  whereby HMRC attempted to flag that the wrong form had been submitted when compared to the Advance Assurance clearance.  The taxpayer did not respond and once form EIS2 was issued the FTT agreed with HMRC that the SEIS relief was unavailable.

Useful guides on this topic

SEIS & EIS: Share issue checklist
A Seed Enterprise Investment Scheme (SEIS) and Enterprise Investment Scheme (EIS) share issue checklist for the issue and allotment of shares.

SEIS: Seed Enterprise Investment Scheme (subscribers)
When can SEIS relief be claimed?  What are the conditions for SEIS relief?  What are the benefits of SEIS relief?

External links

X-Wind Power Limited v HMRC [2017] UKUT 0290 (TCC)