Overview and Planning

It was universally acknowledged (by the press, BBC Radio 4, the Chancellor himself) during the debates on this Employee Shareholder share (ESS) scheme during the summer of 2013 that employee shareholder status will create 'tax avoidance'.

Following Government concerns that ESS was being used mainly for tax planning rather than its intended purpose of developing a more flexible workforce, it was announced at the Autumn Statement 2016 that tax reliefs for individuals will be withdrawn. The Income Tax and CGT reliefs set out below will no longer be available where an individual enters into an ESS scheme on or after 1 December 2016,

The government have also announced that they intend to legislate to close ESS to new entrants as soon as possible.

1. ES employees are given a minimum of £2,000 of ES shares tax-free in exchange for giving up certain employment rights.
2. The issuing company (employer) has to be worth more than £2,000 at the time of the award, in order to be able to give away the minimum number of shares: so this measure may not work with a fresh start-up company.
3. The first £2,000 of ES shares is made tax and NICs free as the employee is treated as if they have made a notional payment to the employer of £2,000 for them. 
4. The shares have to be issued fully paid under the Companies Act 2006. The company, therefore, pays for them out of its distributable reserves.
5. Valuation of ES shares is on CGT principles however any s.431 or s.437 market value election is not taken into account in working out the £2,000 market value limit for tax-free shares.
6. An election will create a 'dry' Income Tax charge for the employee if the unrestricted value of the shares is more than £2,000. the difference between market value and the deemed payment is subject to Income Tax in the employee's hands.
7. As most ESS shares are restricted Employment-Related Securities, once issued they are subject to the Income Tax treatment set out in Part 7 ITEPA 2003. This means that if anything happens to the shares once they have been issued there is technically an Income Tax charge on any increase in value in the employee's hands which is over and above any real increase in value due to the company's performance.
8. An employee with a material interest in the company or an employee who is connected to a person who has a material interest in the company is not treated as making a deemed payment of £2,000 for ES shares.
9. A material interest is an interest in 25% or more of voting rights held by the employee and persons connected to them, or if the company is close, rights on a winding-up. A person can be another company.
10. There will not be a NIC liability on a share award unless the shares are readily convertible assets, that is that trading arrangements exist for their sale. 'Trading arrangement' normally means that the shares can be traded on a recognised stock exchange. The existence of an employee share trust or that potentially the company may be the eventual buyer of the ESS does not automatically create a trading arrangement, according to HMRC's guidance on this point. However, if an employer sets out a detailed buy-back plans for an employee's ESS when it issues them, as part of a plan to create a tax-free bonus scheme it may overstep HMRC's boundary. In short 'if it looks like a trading arrangement' is in place, then it might be safe to assume that a tax tribunal will agree with you; this point is untested.
11. Where an employer pays the employee’s Income Tax, there will be additional National Insurance liability payable on the amount of tax paid.
12. There is no limit on the type of shares that can be offered, for example, they can be restricted, subject to forfeiture or entitled to fixed dividends or not entitled to dividends.
13. Up to £50,000 of shares can be disposed of free of CGT. For subscriptions on or after 16 March 2016, there is a lifetime limit of £100,000 for CGT-exempt gains. Business Asset Disposal Relief (formerly Entrepreneurs' Relief) may apply to any taxable gains.
14. ES shares awarded in consideration of an Employee Shareholder Agreement entered into on or after 17 March 2016 will only be exempt from CGT on gains up to a limit of £100,000.
15. Unlike Enterprise Management Incentive (EMI) options, there are no special provisions that provide ER for ESS shares.
16. The employer company will obtain tax relief on the award, if it gives £20,000 of its shares it will receive tax relief on £20,000, even though no cash changes hands. Tax relief is restricted if shares are given in a subsidiary. This Corporation Tax relief will still be available for ESS agreements entered into on or after 1 December 2016 (when Income Tax and CGT reliefs are removed).
17. There is a specific exemption in place to ensure that a company buy-back of its shares from a leaving employee will not be treated as an income distribution to ensure that only CGT treatment applies for the employee.
18. There is no restriction as to the amount of dividends payable on employee shares. 

Example:

An employee is gifted £20,000 of ESS shares in 2014-15.

• There is no Income Tax or NICs on the first £2,000 of the award. The employee is subject to Income Tax on the balance of £18,000, unless the employee decides to sign a s.431 election electing to be taxed on the unrestricted market value of the shares. The value of the shares is calculated at unrestricted market value and then the employee is taxed on the unrestricted market value of the whole share award, less £2,000.
• The company obtains Corporation Tax relief on £20,000 or the unrestricted market value if an election is in place.
• The company may then vote dividends on the employee shares, depending on the terms of the Articles.
• If the employee leaves the company and sells their shares back in 2020-21 for £50,000, this amount is tax-free in the employee's hands and the company share buy-back is not treated as a distribution. If the employee did not sign the s.431 election a proportion of the gain will be subject to Income Tax.

Planning points

Following the withdrawal of the Income Tax and CGT reliefs from 1 December 2016, it is hard to see why any employee would agree to the loss of rights associated with an ESS.

Dividends and NICs

As the aim of this scheme was to promote employee share ownership it would be rather harsh if HMRC were then able to try and subject any dividend income receivable on the employee shares to NICs. However, employers will need to be advised that they should be extremely careful in drafting share agreements and employment contracts involving these new shares because if part of pay or guaranteed bonus is going to be by a set dividend payable on employee shares it is highly likely, following the PA Holdings case, that HMRC will seek to apply NICs, if not PAYE. 

Leavers and good leaver/ bad leaver clauses

When an employee shareholder leaves employment the employer will generally wish to buy their shares back, but it is advisable to consider provisions that force it to purchase its own shares back, or at least offer them to other shareholders.

• Careful thought is needed to establish some type of valuation methodology so that both seller and buyer do not end up in protracted disputes as to valuation.

Good leaver/bad leaver clauses set out who is a good leaver and who is a bad leaver.

• A bad leaver will generally receive no more than par value for their shares and a good leaver will receive fair value (market value) or a value otherwise set.
• This is open to negotiation between the parties and these provisions require some careful consideration if they are to be included in the Articles or in a shareholder or other relevant agreement before shares are offered.
• A generous employer can provide that a good leaver also includes an employee who is unfairly dismissed, and so the disadvantage of losing the employment right of unfair dismissal is compensated for in the price that the employee receives for their shares.

Capital Gains Tax (CGT)

• CGT exemption applies only to the first £50,000 worth of ESS acquired by the employee.
• The shares are valued at the time they are acquired by the employee.
• If an individual enters into more than one agreement, the £50,000 limit can apply separately to each however a single £50,000 limit applies in relation ES agreements with the same company and/or with companies associated with that company.
• For ES shares acquired under Employee Shareholder Agreements entered into after 16 March 2016, there is a new lifetime limit on CGT exempt gains of £100,000.
• CGT exemption does not apply to an ESS if the employee, or an individual connected with the employee at the time of acquisition, has a material interest (25%) in the employer company, or in a parent undertaking of the employer company, either at the time the ESS is acquired or at any time within the previous year.
• The CGT exemption is withdrawn for ESS agreements entered into on or after 1 December 2016.

CGT losses

If a loss arises on the disposal of ESS that loss is not allowable if a gain would have been exempt.

Where an ESS agreement is entered into on or after 1 December 2016 any loss arising will be allowable.

Transfer to spouse etc

The no gain/no loss rule for disposals by an individual to a spouse or civil partner, S.58 TCGA92, does not apply if the disposal is of exempt ESS.

A spouse or civil partner acquiring ESS is deemed to acquire them for a consideration equal to the market value at the time of the disposal.

Pooling and matching

The ordinary share pooling and matching rules, sections 104, 105 and 106A TCGA92, do not apply to exempt ESS. If an employee holds shares of the same class in the same company and some, but not all, are exempt ESS then, on a disposal of less than all of the shares held, the employee may determine what proportion of the shares disposed of are exempt ESS. The disposal consideration is apportioned accordingly.

Reorganisations and share exchanges

There are special rules for ESS: the normal share for share exchange CGT exemption does not apply. 

Section 127 TCGA92, provides that a reorganisation shall not be treated as involving any disposal of the original shares and for the original shares and the new holding to be treated as the same asset. This does not apply to exempt ESS, the new holding does not inherit the base cost of the exempt ESS or the exemption.

The disapplication of section 127 TCGA92 in relation to exempt ESS extends to that section as otherwise applied by section 135 (exchange of securities for those in another company) or section 136 (scheme of reconstruction involving the issue of securities).

For ES shares acquired prior to 16 March 2016, a share for share exchange following a reorganisation or share exchange on say a takeover, is treated as a share disposal. 

For ES shares acquired under Employee Shareholder Agreements entered into after 16 March 2016, there is a new lifetime limit on CGT exempt gains of £100,000. If these shares are subject to a share for share exchange, any gain of up to £100,000 is exempt from CGT, if this results in there being a chargeable gain at that point because the gain is in excess of £100,000, the gain is rolled over into the cost of the new shares under the exchange. This means that if the employee has already used up all or part of their CGT lifetime exemption on their ES shares, they receive the same CGT treatment as other non-ES shareholders and may rollover any gains into the tax cost of the new shares. 

Costs

ESS schemes can be relatively straightforward to implement depending on the attitude of the client company. There are legal (employment law and company law) as well as tax standpoints. Employers need to ensure that they have the correct documentation in place in order to meet the requirements to provide legal advice and a cooling-off period for employees. On average any small company share scheme will take between 10 to 30 hours of adviser time, for the ESS there is the additional cost of providing legal advice to the employee. These costs are worthwhile because this is often the first time that a board takes a serious look at the Articles, shareholder agreements and service agreements, so there is added value in addition to incentivising employees.

• The Virtual Tax Partner service can provide model articles, scheme rules, employee particulars and checklists and mentor/oversee or set up schemes at competitive prices.

Valuation at time of award

The value of ESS shares is to be market value within the meaning of the Taxation of Chargeable Gains Act 1992. The type of shares that are offered to employees will generally have restricted rights as most employers will not wish to have employees actually running their board. Valuation of any type of company is as always a matter of negotiation with HMRC SAV.

Valuation for PAYE

The value of the shares for PAYE purposes is the Actual Market Value (AMV) as calculated as for CGT purposes. Under the Restricted Securities regime in Part 7 ITEPA 2003, there may potentially be a tax charge after the share purchase if any changes are made which unlock restrictions on shares so that AMV increases. Employer and employee may elect to disapply restrictions and if so the employee is taxable on the Unrestricted Market Value (UMV) the shares. 

Obtaining value as an employee: issues for employers

Most employees who have employer shares will be wanting to achieve a company sale in order to maximise their return on their investments, but as minority shareholders they may have a minor effect on the business and so any outcome will depend more on the policy of the company’s board and its dividend policy over time. Employers have to be careful about misselling the advantages of share ownership. There are numerous safeguards built into this scheme that are designed to protect employees but the danger is that the employer may 'over-egg' a share scheme and so there is a danger of misrepresentation.

Treasury shares and company share buyback

From 30 April 2013 companies may buy back and hold their own shares in treasury. The Companies Act 2013 is amended, as from 30 April 2013, allowing all companies limited by shares to hold their own shares in treasury.
The amended rules:

• Remove the requirement for a company to repurchase its shares in full and instead allow a company to pay for its own shares by instalments.
• Shares may be purchased out of capital with cash, up to an amount in a financial year not exceeding the lower of:
  • (i) £15,000 or
  • (ii) the value of 5% of its share capital.
• An off-market share buyback for the purposes of an employee share scheme may be authorised by ordinary resolution.
• A company may make a resolution whereby it may make off-market purchases without having a buy-back contract approved by its shareholders. The resolution sets the conditions under which the shares might be bought back and specifies the maximum number of shares that can be acquired, the price range and the time of expiry of the authorisation (maximum five years).
• A company may hold its shares in treasury and may place shares bought back in Treasury.
• An off-market share buyback is one where the purchase of a company’s own shares does not take place on a recognised investment exchange.
• There is a simplified procedure for purchasing shares out of capital which is similar to that required for a capital reduction for private companies.

Employee benefit trusts (EBTs)

Following the introduction of Part 7A ITEPA 2003 (the Disguised Remuneration anti-avoidance rules) it is very difficult for a company to set up a vehicle, such as an EBT to facilitate an employee share plan, hence the relaxation of rules for treasury shares (see point above). An EBT was previously the vehicle of choice for company share schemes because the EBT is able to hold shares on behalf of the employer and so employee shares can easily be sold and purchased via the EBT. The government did consult as to whether a new non-trust vehicle should be allowed to hold employee shares, but this idea was dropped due to lack of interest.

Trading arrangements

Where there are arrangements in place to buy employee shares at any time it will make shares readily convertible assets. This would mean that PAYE and NICs apply to any employee owner share award that is worth more than £2,000. We understand that HMRC agrees that if a company has made a general resolution to buy-back employee shares over a five year period that this will not on its own be treated as a trading arrangement. The position would be reversed if there was a contract in place guaranteeing the employee a purchase at a set time for cash or other benefits.

Shareholder rights

'“Drag-along rights', in relation to shares in a company, means the right of the holders of a majority of the shares, where they are selling their shares, to require the holders of the minority to sell theirs. 'Tag-along rights', in relation to shares in a company, means the right of the holders of a minority of the shares to sell their shares, where the holders of the majority are selling theirs, on the same terms as those on which the holders of the majority are doing so.

Small Print

HMRC CGT guidance

Legislation

The Capital Gains Tax exemption is at TCGA 1992 s.236B - 236G; amended by Finance Act 2016 section 88.

Legislation will be introduced in Finance Bill 2017 to remove the CGT and Income Tax exemptions for individuals entering into ES agreements on or after 1 December 2016,

Statutory Instrument, S.I. 2013/999 The Companies Act (CA) 2006 (Amendment of Part 18) Regulations 2013, from 30 April 2013 - amends the Companies Act 2006 (not reproduced here).

Section 31 Growth and Infrastructure Act 2013 adds the following measures which shape the employment:

Employee shareholders - new section 205A is added to the Employment Rights Act 1996 as follows:

(1) An individual who is or becomes an employee of a company is an “employee shareholder” if:

(a) the company and the individual agree that the individual is to be an employee shareholder,

(b) in consideration of that agreement, the company issues or allots to the individual fully paid up shares in the company, or procures the issue or allotment to the individual of fully paid up shares in its parent undertaking, which have a value, on the day of issue or allotment, of no less than £2,000, and

(c) the company gives the individual a written statement of the particulars of the status of the employee shareholder and of the rights which attach to the shares referred to in paragraph (b) ('the employee shares') (see subsection 5), and

(d) the individual gives no consideration other than by entering into the agreement.

(2) An employee who is an employee shareholder does not have—

(a) the right to make an application under section 63D (request to undertake study or training),

(b) the right to make an application under section 80F (request for flexible working),

(c) the right under section 94 not to be unfairly dismissed, or

(d) the right under section 135 to a redundancy payment.

(3) The following provisions are to be read in the case of an employee who is an employee shareholder as if for “8 weeks’ notice”, in each place it appears, there were substituted “16 weeks’ notice”—

(a) regulation 11 of the Maternity and Parental Leave etc. Regulations 1999 (S.I. 1999/3312S.I. 1999/3312) (requirement for employee to notify employer of intention to return to work during maternity leave period), and

(b) regulation 25 of the Paternity and Adoption Leave Regulations 2002 (S.I. 2002/2788S.I. 2002/2788) (corresponding provision for adoption leave).

(4) Regulation 30 of the Additional Paternity Leave Regulations 2010 (S.I. 2010/1055) (requirement for employee to notify employer of intention to return to work during additional paternity leave period) is to be read in the case of an employee who is an employee shareholder as if for “six weeks’ notice”, in each place it appears, there were substituted “16 weeks’ notice”.

(5) The statement referred to in subsection (1)(c) must:

(a) state that, as an employee shareholder, the individual would not have the  rights specified in subsection (2),

(b) specify the notice periods that would apply in the individual’s case as a result of subsections (3) and (4),

(c) state whether any voting rights attach to the employee shares,

(d) state whether the employee shares carry any rights to dividends,

(e) state whether the employee shares would, if the company were wound up, confer any rights to participate in the distribution of any surplus assets,

(f) if the company has more than one class of shares and any of the rights referred to in paragraphs (c) to (e) attach to the employee shares, explain how those rights differ from the equivalent rights that attach to the shares in the largest class (or next largest class if the class which includes the employee shares is the largest),

(g) state whether the employee shares are redeemable and, if they are, at whose option,

(h) state whether there are any restrictions on the transferability of the employee shares and, if there are, what those restrictions are,

(i) state whether any of the requirements of sections 561 and 562 of the Companies Act 2006 are excluded in the case of the employee shares (existing shareholders’ right of pre-emption), and

(j) state whether the employee shares are subject to drag-along rights or tag-along rights and, if they are, explain the effect of the shares being so subject.’.

(6) Agreement between a company and an individual that the individual is to become an employee shareholder is of no effect unless, before the agreement is made:

(a) the individual, having been given the statement referred to in subsection (1)(c), receives advice from a relevant independent adviser as to the terms and effect of the proposed agreement, and

(b) seven days have passed since the day on which the individual receives the advice.

(7) Any reasonable costs incurred by the individual in obtaining the advice (whether or not the individual becomes an employee shareholder) which would, but for this subsection, have to be met by the individual are instead met by the company.

(8) The reference in subsection (2)(b) to making an application under section 80F does not include a reference to making an application within the period of 14 days beginning with the day on which the employee shareholder returns to work from a period of parental leave under regulations under section 76.

(9) The reference in subsection (2)(c) to unfair dismissal does not include a reference to a dismissal—

(a) which is required to be regarded as unfair for the purposes of Part 10 by a provision (whenever made) contained in or made under this or any other Act, or

(b) which amounts to a contravention of the Equality Act 2010.

(10) The reference in subsection (2)(c) to the right not to be unfairly dismissed does not include a reference to that right in a case where section 108(2) (health and safety cases) applies.

(11) The Secretary of State may by order amend subsection (1) so as to increase the sum for the time being specified there.

(12) The Secretary of State may by regulations provide that any agreement for a company to buy back from an individual the shares referred to in subsection (1)(b) in the event that the individual ceases to be an employee shareholder or ceases to be an employee must be on terms which meet the specified requirements.

(13) In this section—

“company” means—

(a) a company or overseas company (within the meaning, in each case, of the Companies Act 2006) which has a share capital, or

(b) 20a European Public Limited-Liability Company (or Societas Europaea) within the meaning of Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European company;

“parent undertaking” has the same meaning as in the Companies Act 2006.

(14) The reference in this section to the value of shares in a company is a reference to their market value within the meaning of the Taxation of Chargeable Gains Act 1992 (see sections 272 and 273 of that Act).”

The Employment Rights Act

47G Employee shareholder status

(1) An employee has the right not to be subjected to a detriment by any act, or any deliberate failure to act, by the employee’s employer done on the ground that the employee refused to accept an offer by the employer for the employee to become an employee shareholder (within the meaning of section 205A).

(2) This section does not apply if the detriment in question amounts to dismissal within the meaning of Part 10.”

(3) In section 48(1) of that Act (presentation of complaint to employment tribunal) for "or 47F" substitute " 47F or 47G"

(4) After section 104F of that Act insert—

104G Employee shareholder status

An employee who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee refused to accept an offer by the employer for the employee to become an employee shareholder (within the meaning of section 205A).

(5) In section 108(3) of that Act (exceptions to provision on qualifying period of employment), after paragraph (gl) insert -

"(gm) section 104G applies"

(6) In section 236(3) of that Act (orders and regulations subject to affirmative resolution procedure), for "or 125(7)" substitute "125(7) or 205A(11) or (12)".

Updates

24/11/2016 updated for Autumn Statement 2016 announcement on withdrawal of Income Tax and CGT reliefs.

19/09/2016 updated following Finance Act 2016 Royal Assent

15/08/16 Added links to HMRC CGT guidance.

22/06/16 Finance Bill amendment to share for share exchange rules following introduction of £100,000 CGT exemption lifetime limit.