Enterprise Management Incentive Options (“EMI”)
Tax efficient retention 0f key staff
EMI options are granted as part of a plan to incentivise employees where the options are granted for commercial reasons in order to recruit and retain employees in a company.
The total value of shares in a company which may be subject to unexercised EMI options at any time is £3 million. The maximum entitlement of an individual EMI option holder at the date of grant of the EMI option is £250,000.
Below is set out a brief summary of the main terms required to be satisfied in order for there to be a valid grant of an EMI option.
There are a number of different qualifications which have to be satisfied, and these relate to:
- the company whose shares are to be placed under the proposed EMI option;
- the individual to whom the option is granted; and
- the terms and circumstances under which the option is granted.
These are for the most part ongoing tests and it is not usually sufficient to satisfy these tests only at the time on which the option was granted.
HM Revenue & Customs may comment in advance on whether the company is a qualifying company or not. If the option fails to qualify as an EMI option at any time during its lifetime then it becomes an unapproved option and will be taxed as such. It is therefore advisable to include the usual tax indemnities in an EMI option plan and consider entering into an agreement with employees granted EMI options to transfer any employer’s National Insurance liability arising to such employees.
A qualifying company must:
- be independent;
- have qualifying subsidiaries, if it has subsidiaries;
- satisfy a gross assets test;
- satisfy tests as to its trading activities;
- satisfy the test as to having a UK permanent establishment; and
- satisfy the test regarding 250 employees.
An EMI option cannot be granted over shares in a company which is either a 51% subsidiary or under the control of another company (or of another company and any other person connected with that other company) without being a 51% subsidiary.
Also there must be no arrangements in place by virtue of which the company could become a 51% subsidiary or come under the control of another company e.g. via convertible loan notes
If the company has subsidiaries, then every subsidiary must be a “qualifying subsidiary”. For EMI purposes, a subsidiary is any company which the company controls, either on its own or with a connected person.
If a subsidiary is to be a “qualifying subsidiary” it must be a 51% subsidiary of the company and no person other than the company (or another of its subsidiaries) can have control of the subsidiary. There must be no arrangements in place whereby the subsidiary would cease to be a 51% subsidiary of the company or come under the control of another company (other than another subsidiary of the company).
Essentially, this means that the company can have minority shareholdings as they would not be regarded as a subsidiary, but it cannot have a joint venture holding as a subsidiary.
Further, if any of its subsidiaries is a “property managing subsidiary” it must be a 90% subsidiary of the company in order to be a qualifying subsidiary.
A property managing subsidiary would be a qualifying subsidiary of the company whose business consists wholly or mainly in the holding or managing of land or any property deriving its value from land.
In order to satisfy this test, the consolidated value of the group assets (i.e. without deduction of any liabilities) must not exceed £30m sterling.
For EMI purposes it is possible to disregard any assets that consist in rights against, or shares in or securities of, another company in the group. HMRC will also take the value of the assets at their amortised or depreciated value in calculating this limit.
A single company must exist wholly for the purpose of carrying on and carry on one or more qualifying trades. In general, a company will fulfil the trading arrangements requirement, even if it is not yet trading, but is preparing to trade.
A trade is a qualifying trade if it:
- is conducted on a commercial basis with a view to the realisation of profits; and
- does not consist wholly or to a substantial part in the carrying on of “excluded activities”.
Excluded activities include the following:
- dealing in land, in commodities or futures or in shares, securities or other financial instruments;
- dealing in goods otherwise than in the course of an ordinary trade of wholesale or resale distribution;
- banking, insurance, money-lending, debt-factoring, hire-purchase financing or other financial activities;
- leasing (including letting ships on charter or other assets on hire) or receiving royalties or licence fees;
- the provision of services or facilities for a business carried on by another person where the business consists of excluded activities and one person holds a controlling interest in both businesses;
- property development;
- providing legal or accountancy services;
- farming or market gardening;
- holding, managing, or occupying woodlands, any other forestry activities or timber production;
- operating or managing hotels or comparable establishments, or managing property used as a hotel or comparable establishment;
- operating or managing nursing homes or residential care homes, or managing property used as a nursing home or residential care home; and
- shipbuilding, steel and coal production.
In the case of a parent company (as opposed to a single company), the trading activities requirement will be satisfied if:
- the business of the group as a whole does not consist wholly or substantially of non-qualifying activities i.e. excluded activities as listed above; and
- at least one group company exists wholly (ignoring any insubstantial activities) for the purposes of carrying on one or more qualifying trades and is carrying on a qualifying trade or preparing to do so.
UK permanent establishment
A company must have a UK permanent establishment. This requirement is met if:
- the company has a permanent establishment in the United Kingdom; or
- the company is a parent company and any other member of the group exists:
- wholly for the purpose of carrying on one or more qualifying trade and is carrying on a qualifying trade or preparing to do so; and
- has a permanent establishment in the United Kingdom.
Less than 250 employees
A company will also only qualify if the number of employees in the company and its subsidiaries is less than 250. There are certain rules about calculating this number where there are part-time employees.
An individual will be an eligible employee with respect to the qualifying company if the following requirements are satisfied:
- commitment of “working time”; and
- no material interest.
The employee will satisfy this condition if he is an employee of either the qualifying company or one of its qualifying subsidiaries. There is no requirement to be employed in the UK, but this will normally be the case as non-UK individuals would not obtain much benefit from an EMI options.
Commitment to “working time”
The employee must be committed to working at least 25 hours a week or if less, 75% of his working time. Committed time in this context means time that he or she is required as an employee to spend on the business of qualifying company or, if any, of any qualifying subsidiary or would have been required to spend but for some specific narrow exceptions such as, for example, injury or maternity leave. Working time also has a specific statutory meaning which may be summarised as time spent in remunerative work (either as an employee or as a self-employed person).
The employee on his own or together with his associates must not have ownership of, or the ability to control, directly or indirectly more than 30% of the ordinary share capital of the qualifying company or any group company.
Terms and Circumstances under which the Option is Granted
The shares under option must be:
- part of the ordinary share capital of the qualifying company;
- fully paid up; and
- not redeemable.
The option must be capable of being exercised within 10 years.
The terms (as specified in the legislation) of the option must be set out in writing at the time of grant of the option.
The option must not be assignable.
Where an EMI option is not exercised within 90 days of a Disqualifying Event any gain arising on the eventual exercise of the EMI Option from the date of the Disqualifying Event will be subject to higher rates of Income Tax rather than Capital Gains Tax.
The following is a summary of the EMI Disqualifying Events:
- The relevant company: (i) becoming a 51% subsidiary of another company; or (ii) coming under the control of another company (or of another company and any other person connected with that other company) without being a 51% subsidiary of that other company.
- The relevant company ceasing to meet the relevant trading activity requirement (as at the time the option was granted) or potentially the UK permanent establishment requirement (see above).
- The employee ceasing to be an eligible employee by reason of: (i) ceasing to be an employee of the company or one of its subsidiaries; or (ii) failing to meet the commitment of “working time” requirements (see above for more details); or (iii) if, in any tax year, the employee’s relevant working time amounts to less than 25 hours a week or, if less, 75% of his working time.
- The variation of the terms of the Option which: (i) causes an increase in the market value of the shares which are the subject of the Option; or (ii) are such that the requirements of Schedule 5 are no longer met.
- Any alteration to the share capital of the company where shares are under Option the effect of the alteration being: (i) that the requirements of the type of share to be held under option are no longer satisfied (see above); or (ii) to increase the market value of the shares that are subject to the option, where the alteration may have created, varied or removed a right, or imposed or lifted a restriction in relation to any shares in the company and the alteration is not carried out for any commercial reason.
- The grant to an employee or an HM Revenue & Customs Approved Company Share Option (CSOP), where immediately after it is granted, the employee will hold unexercised employee options with a total value of more than £250,000.
Notice of Option to be given to HM Revenue & Customs
For an option to be a qualifying EMI option notice of the option must be given to HM Revenue & Customs within 92 days from the grant of the option using the HMRC website.
The notice must: (i) be given by the employer company; and (ii) be in a form required or authorised by HM Revenue & Customs.
Tax Treatment of EMI Options
On grant of the options
There is no tax chargeable in respect of the grant of an EMI option for either the employee or the employer.
On Exercise of the Options
Where the option is to acquire shares at not less than their market value at the time the option is granted there is no tax charge in respect of the exercise of the option for either the employee or the employer.
There will be an Income Tax charge on an exercise of an option to acquire shares at less than market value. The amount of the chargeable gain will be the amount by which the chargeable market value, exceeds the aggregate of: (i) the amount paid for the option (if any); and (ii) the exercise price.
Chargeable market value means:
- the market value of the shares at the time the option was granted (or if a replacement option, at the time the original option was granted); or
- if lower, the market value of the shares at the time the option is exercised.
There will be an Income Tax charge on an exercise of an option to acquire shares at less than their market value. The amount of the chargeable gain will be the amount by which the chargeable market value (as described above), exceeds the amount paid for the option (if any).
Where there is a charge to tax on the exercise of a nominal option price or discounted EMI option and the shares acquired pursuant to the option are Readily Convertible Assets (RCAs), there will be a corresponding National Insurance Contribution (“NIC”) liability for the employer employee.
The parties may agree that any employer’s NIC liability arising on the exercise of an option will be transferred to the employee.
On Sale of Shares
On the disposal of any shares acquired pursuant to the exercise of an EMI option there will be a charge to Capital Gains Tax on the difference between the disposal proceeds less the aggregate of the exercise price of the Option.
The employee can use their CGT annual allowance so that only gains in excess of this amount will then be subject to CGT.
If an EMI option holder satisfies the one year holding requirement between the grant of the EMI option and the disposal of the shares acquired on exercise of the EMI option, an extension to the entrepreneurs’ relief rules means the relief may be available to reduce the rate of capital gains tax payable to 10% for gains up to a lifetime limit of £10 million.
Frequently Asked Questions
EMI options are share options often given to senior management and can form part of a remuneration and retention package. They give the employee the right to purchase shares at an agreed price once the requirements of the option are met.
There are usually good and bad leaver provisions built into the option deed. If the employee is a good leaver they may be able to keep or exercise the shares. If they are a bad leaver they will usually forfeit the shares.
Tax valuations can be complex and expert advice should be sought.
EMI options are incentives for key management it is unlikely that HMRC will approve a plan that includes all staff.
Any hurdles can be included, in order to qualify as an EMI option and benefit from the tax benefits the option must have a minimum exercise period of 3 years and a maximum of 10 years.
Financial hurdles are common – such as turnover levels or personal sales targets.
The option deed can be written so that the option can only be exercised immediately prior to an exit.