5 EIS rules you are probably not aware of


SEIS and EIS provide a fantastic boost to fund raising opportunities for companies wanting to grow; they make it far easier to attract investment because of the tax relief opportunities available to investors. The generous tax reliefs can also mean it is possible to ask for a higher price for shares at the outset, resulting in more investment funds being raised.

For example, if an investor pays £10,000 for shares and is able to obtain a £5,000 reduction in their tax liability, their investment actually only ‘costs’ them £5,000. If the same company values its shares at a 20% premium, the same applies. The investor sees a £6,000 entry cost for the shares which is still good value and the company has been able to command a premium price.

Although we have covered EIS and SEIS and their qualifying criteria many times in previous blogs, we have not specifically focused on some of the new rules that apply to applications.

Here are 5 rules which it is important to be aware of:

1. Go for growth only
All funds raised must be ‘wholly and exclusively to support the growth and development of the company’ and not used to clear debts or to finance the purchase of an existing trade. Ideally the company needs to be able to show that the investment is being used to fund new product or service development, or new IP (which may subsequently be eligible for R&D tax credits or patent box relief). The definition of growth and development is quite wide; the use of the funds to finance staff working in new roles, or a change in marketing strategy should also qualify. Investment can also be used to support additional recruitment and staffing costs as the company expands, or investment into marketing and brand development – anything that is specifically documented within the company’s growth plans. Provided that the maximum EIS investment limits are not breached (currently there is a lifetime cap of £12m per company or £20m for a knowledge intensive business), there is no reason why a company cannot undergo multiple investment rounds and raise growth funds throughout its lifecycle.

2. Be young and risky
With a few exceptions EIS relief isn’t available for a share issue in a company that has been trading for more than 7 years (ten if the company qualifies as a ‘knowledge intensive’ company).

Broadly, the exceptions apply where there was an application for EIS relief in the first seven years, or the company is entering into a new market (either product or geographical) and the turnover exceeds 50% of the average turnover for the previous five years.

3. New shareholders only need apply
An EIS investor is not permitted to already hold shares in the company unless it is an existing EIS or SEIS shareholding.

4. The riskier the better
Although investing in early stage companies is always risky, the definition of what constitutes appropriate risk has expanded now and an EIS investment should be risky to the point that the ‘investor could lose more capital than they gain as a return’ (including tax relief) to qualify. For more established companies, this risk can be for example in the form of an innovative growth strategy, taking the business into uncharted territories. It means that property backed, low risk strategies will be excluded. Service based companies are typically eligible provided they are actively providing a service and not simply receiving a passive income.

5. Beware reliance on past advance assurance
It’s a common mistake to assume that if advance assurance was sought and received in the past, a later share issue will automatically qualify for EIS relief. Because of the number and range of changes made to the EIS qualifying criteria, past advance assurances may no longer be relevant. For the sake of your more recent investors it is important that for each round of investment fresh advance assurance from HMRC is sought.

If you are interested in the tax reliefs available to you by investing in an EIS or SEIS approved company or would like to raise investment through EIS and want to discuss the tax implications, please contact Anne Eager at [email protected].