Finance Act 1989

Section 74.

SCHEDULE 5 Employee Share Ownership Trusts

Qualifying trusts

1 A trust is a qualifying employee share ownership trust at the time it is established if the conditions set out in paragraphs 2 to 11 below are satisfied in relation to the trust at that time.

General

2 (1) The trust must be established under a deed (the trust deed).

(2) The trust must be established by a company (the founding company) which, at the time the trust is established, is resident in the United Kingdom and not controlled by another company.

Trustees

3 (1) The trust deed must provide for the establishment of a body of trustees.

(2) The trust deed must—

(a) appoint the initial trustees;

(b) contain rules for the retirement and removal of trustees;

(c) contain rules for the appointment of replacement and additional trustees.

(3) The trust deed must provide that at any time while the trust subsists (the relevant time)—

(a) the number of trustees must not be less than three;

(b) all the trustees must be resident in the United Kingdom;

(c) the trustees must include one person who is a trust corporation, a solicitor, or a member of such other professional body as the Board may from time to time allow for the purposes of this paragraph;

(d) most of the trustees must be persons who are not and have never been directors of any company which falls within the founding company’s group at the relevant time;

(e) most of the trustees must be persons who are employees of companies which fall within the founding company’s group at the relevant time, and who do not have and have never had a material interest in any such company;

(f) the trustees falling within paragraph (e) above must, before being appointed as trustees, have been selected by a majority of the employees of the companies falling within the founding company’s group at the time of the selection or by persons elected to represent those employees.

(4) For the purposes of sub-paragraph (3) above a company falls within the founding company’s group at a particular time if—

(a) it is the founding company, or

(b) it is at that time resident in the United Kingdom and controlled by the founding company.

Beneficiaries

4 (1) The trust deed must contain provision as to the beneficiaries under the trust, in accordance with the following rules.

(2) The trust deed must provide that a person is a beneficiary at a particular time (the relevant time) if—

(a) he is at the relevant time an employee or director of a company which at that time falls within the founding company’s group,

(b) at each given time in a qualifying period he was an employee or director of a company falling within the founding company’s group at that given time, and

(c) at that given time he worked as an employee or director of the company concerned at the rate of at least 20 hours a week (ignoring such matters as holidays and sickness).

(3) The trust deed may provide that a person is a beneficiary at a particular time (the relevant time) if—

(a) he has at each given time in a qualifying period been an employee or director of a company falling within the founding company’s group at that given time,

(b) he has ceased to be an employee or director of the company or the company has ceased to fall within that group, and

(c) at the relevant time a period of not more than eighteen months has elapsed since he so ceased or the company so ceased (as the case may be).

(4) The trust deed may provide for a person to be a beneficiary if the person is a charity and the circumstances are such that—

(a) there is no person who is a beneficiary within any rule which is included in the deed and conforms with sub-paragraph (2) or (3) above, and

(b) the trust is in consequence being wound up.

(5) For the purposes of sub-paragraph (2) above a qualifying period is a period—

(a) whose length is not less than one year and not more than five years,

(b) whose length is specified in the trust deed, and

(c) which ends with the relevant time (within the meaning of that sub-paragraph).

(6) For the purposes of sub-paragraph (3) above a qualifying period is a period—

(a) whose length is equal to that of the period specified in the trust deed for the purposes of a rule which conforms with sub-paragraph (2) above, and

(b) which ends when the person or company (as the case may be) ceased as mentioned in sub-paragraph (3)(b) above.

(7) The trust deed must not provide for a person to be a beneficiary unless he falls within any rule which is included in the deed and conforms with sub-paragraph (2), (3) or (4) above.

(8) The trust deed must provide that, notwithstanding any other rule which is included in it, a person cannot be a beneficiary at a particular time (the relevant time) if—

(a) at that time he has a material interest in the founding company, or

(b) at any time in the period of one year preceding the relevant time he has had a material interest in that company.

(9) For the purposes of this paragraph a company falls within the founding company’s group at a particular time if—

(a) it is at that time resident in the United Kingdom, and

(b) it is the founding company or it is at that time controlled by the founding company.

(10) For the purposes of this paragraph a charity is a body of persons established for charitable purposes only.

Trustees' functions

5 (1) The trust deed must contain provision as to the functions of the trustees.

(2) The functions of the trustees must be so expressed that it is apparent that their general functions are—

(a) to receive sums from the founding company and other sums (by way of loan or otherwise);

(b) to acquire securities;

(c) to transfer securities or sums (or both) to persons who are beneficiaries under the terms of the trust deed;

(d) to transfer securities to the trustees of profit sharing schemes approved under Schedule 9 to the Taxes Act 1988, for a price not less than the price the securities might reasonably be expected to fetch on a sale in the open market;

(e) pending transfer, to retain the securities and to manage them (whether by exercising voting rights or otherwise).

Sums

6 (1) The trust deed must require that any sum received by the trustees—

(a) must be expended within the relevant period,

(b) may be expended only for one or more of the qualifying purposes, and

(c) must, while it is retained by them, be kept as cash or be kept in an account with a bank or building society.

(2) For the purposes of sub-paragraph (1) above the relevant period is the period of nine months beginning with the day found as follows—

(a) in a case where the sum is received from the founding company, or a company which is controlled by that company at the time the sum is received, the day following the end of the period of account in which the sum is charged as an expense of the company from which it is received;

(b) in any other case, the day the sum is received.

(3) For the purposes of sub-paragraph (1) above each of the following is a qualifying purpose—

(a) the acquisition of shares in the founding company;

(b) the repayment of sums borrowed;

(c) the payment of interest on sums borrowed;

(d) the payment of any sum to a person who is a beneficiary under the terms of the trust deed;

(e) the meeting of expenses.

(4) The trust deed must provide that, in ascertaining for the purposes of a relevant rule whether a particular sum has been expended, sums received earlier by the trustees shall be treated as expended before sums received by them later; and a relevant rule is one which is included in the trust deed and conforms with sub-paragraph (1) above.

(5) The trust deed must provide that, where the trustees pay sums to different beneficiaries at the same time, all the sums must be paid on similar terms.

(6) For the purposes of sub-paragraph (5) above, the fact that terms vary according to the levels of remuneration of beneficiaries, the length of their service, or similar factors, shall not be regarded as meaning that the terms are not similar.

Securities

7 (1) Subject to paragraph 8 below, the trust deed must provide that securities acquired by the trustees must be shares in the founding company which—

(a) form part of the ordinary share capital of the company,

(b) are fully paid up,

(c) are not redeemable, and

(d) are not subject to any restrictions other than restrictions which attach to all shares of the same class or a restriction authorised by sub-paragraph (2) below.

(2) Subject to sub-paragraph (3) below, a restriction is authorised by this sub-paragraph if—

(a) it is imposed by the founding company’s articles of association,

(b) it requires all shares held by directors or employees of the founding company, or of any other company which it controls for the time being, to be disposed of on ceasing to be so held, and

(c) it requires all shares acquired, in pursuance of rights or interests obtained by such directors or employees, by persons who are not (or have ceased to be) such directors or employees to be disposed of when they are acquired.

(3) A restriction is not authorised by sub-paragraph (2) above unless—

(a) any disposal required by the restriction will be by way of sale for a consideration in money on terms specified in the articles of association, and

(b) the articles also contain general provisions by virtue of which any person disposing of shares of the same class (whether or not held or acquired as mentioned in sub-paragraph (2) above) may be required to sell them on terms which are the same as those mentioned in paragraph (a) above.

(4) The trust deed must provide that shares in the founding company may not be acquired by the trustees at a price exceeding the price they might reasonably be expected to fetch on a sale in the open market.

(5) The trust deed must provide that shares in the founding company may not be acquired by the trustees at a time when that company is controlled by another company.

8 The trust deed may provide that the trustees may acquire securities other than shares in the founding company—

(a) if they are securities issued to the trustees in exchange in circumstances mentioned in section 85(1) of the [1979 c. 14.] Capital Gains Tax Act 1979, or

(b) if they are securities acquired by the trustees as a result of a reorganisation, and the original shares the securities represent are shares in the founding company (construing “reorganisation” and “original shares” in accordance with section 77 of that Act).

9 (1) The trust deed must provide that—

(a) where the trustees transfer securities to a beneficiary, they must do so on qualifying terms;

(b) the trustees must transfer securities before the expiry of the period of seven years beginning with the date on which they acquired them.

(2) For the purposes of sub-paragraph (1) above a transfer of securities is made on qualifying terms if—

(a) all the securities transferred at the same time are transferred on similar terms,

(b) securities have been offered to all the persons who are beneficiaries under the terms of the trust deed when the transfer is made, and

(c) securities are transferred to all such beneficiaries who have accepted.

(3) For the purposes of sub-paragraph (2) above, the fact that terms vary according to the levels of remuneration of beneficiaries, the length of their service, or similar factors, shall not be regarded as meaning that the terms are not similar.

(4) The trust deed must provide that, in ascertaining for the purposes of a relevant rule whether particular securities are transferred, securities acquired earlier by the trustees shall be treated as transferred by them before securities acquired by them later; and a relevant rule is one which is included in the trust deed and conforms with sub-paragraph (1) above.

Other features

10 The trust deed must not contain features which are not essential or reasonably incidental to the purpose of acquiring sums and securities, transferring sums and securities to employees and directors, and transferring securities to the trustees of profit sharing schemes approved under Schedule 9 to the Taxes Act 1988.

Rules about acquisition etc.

11 (1) The trust deed must provide that, for the purposes of the deed, the trustees—

(a) acquire securities when they become entitled to them;

(b) transfer securities to another person when that other becomes entitled to them;

(c) retain securities if they remain entitled to them.

(2) But if the deed provides as mentioned in paragraph 8 above, it must provide for the following exceptions to any rule which is included in it and conforms with sub-paragraph (1)(a) above, namely, that—

(a) if securities are issued to the trustees in exchange in circumstances mentioned in section 85(1) of the [1979 c. 14.] Capital Gains Tax Act 1979, they shall be treated as having acquired them when they became entitled to the securities for which they are exchanged;

(b) if the trustees become entitled to securities as a result of a reorganisation, they shall be treated as having acquired them when they became entitled to the original shares which those securities represent (construing “reorganisation” and “original shares” in accordance with section 77 of that Act).

(3) The trust deed must provide that—

(a) if the trustees agree to take a transfer of securities, for the purposes of the deed they become entitled to them when the agreement is made and not on a later transfer made pursuant to the agreement;

(b) if the trustees agree to transfer securities to another person, for the purposes of the deed the other person becomes entitled to them when the agreement is made and not on a later transfer made pursuant to the agreement.

Position after trust’s establishment

12 A trust which was at the time it was established a qualifying employee share ownership trust shall continue to be one, except that it shall not be such a trust at any time when the requirements mentioned in paragraph 3(3)(a) to (f) above are not satisfied.

13 A trust is an employee share ownership trust at a particular time (the relevant time) if it was a qualifying employee share ownership trust at the time it was established; and it is immaterial whether or not it is a qualifying employee share ownership trust at the relevant time.

Interpretation

14 For the purposes of this Schedule the following are securities—

(a) shares;

(b) debentures.

15 For the purposes of this Schedule, the question whether one company is controlled by another shall be construed in accordance with section 840 of the Taxes Act 1988.

16 (1) For the purposes of this Schedule a person shall be treated as having a material interest in a company if he, either on his own or with one or more of his associates, or if any associate of his with or without other such associates,—

(a) is the beneficial owner of, or able (directly or through the medium of other companies or by any other indirect means) to control, more than 5 per cent. of the ordinary share capital of the company, or

(b) possesses, or is entitled to acquire, such rights as would, in the event of the winding-up of the company or in any other circumstances, give an entitlement to receive more than 5 per cent. of the assets which would then be available for distribution among the participators.

(2) In this paragraph—

(a) “associate” has the same meaning as in section 417(3) and (4) of the Taxes Act 1988, but subject to sub-paragraph (3) below,

(b) “control” has the meaning given by section 840 of that Act, and

(c) “participator” has the same meaning as in Part XI of that Act.

(3) Where a person has an interest in shares or obligations of the company as a beneficiary of an employee benefit trust, the trustees shall not be regarded as associates of his by reason only of that interest unless sub-paragraph (5) below applies in relation to him.

(4) In sub-paragraph (3) above “employee benefit trust” has the same meaning as in paragraph 7 of Schedule 8 to the Taxes Act 1988, except that in its application for this purpose paragraph 7(5)(b) of that Schedule shall have effect as if it referred to the day on which this Act was passed instead of to 14th March 1989.

(5) This sub-paragraph applies in relation to a person if at any time on or after the day on which this Act was passed—

(a) he, either on his own or with any one or more of his associates, or

(b) any associate of his, with or without other such associates,

has been the beneficial owner of, or able (directly or through the medium of other companies or by any other indirect means) to control, more than 5 per cent. of the ordinary share capital of the company.

(6) Sub-paragraphs (9) to (12) of paragraph 7 of Schedule 8 to the Taxes Act 1988 shall apply for the purposes of sub-paragraph (5) above as they apply for the purposes of that paragraph.