Finance Act 1998

The enterprise investment scheme and venture capital trusts U.K.

70 Qualifying trades for EIS and VCTs. U.K.

(1) Schedule 12 to this Act (which amends the definition of qualifying trade for the purposes of the enactments relating to the enterprise investment scheme and venture capital trusts) shall have effect.

(2) In section 298(4) of the Taxes Act 1988 (power to amend sections 297 and 298), for “section 297" there shall be substituted “ sections 293 and 297 ”.

(3) In paragraph 12(a) of Schedule 28B to that Act (power to amend paragraphs 4 and 5 of that Schedule), for “4 and 5" there shall be substituted “ 3 to 5 ”.

(4) The power conferred by subsection (2) above shall not be exercisable in relation to any shares issued before 17th March 1998.

71 Pre-arranged exits from EIS. U.K.

(1) After section 299A of the Taxes Act 1988 there shall be inserted the following section—

“299B Pre-arranged exits.

(1) An individual is not eligible for relief in respect of any shares in a company if the relevant arrangements include—

(a) arrangements with a view to the subsequent repurchase, exchange or other disposal of those shares or of other shares in or securities of the same company;

(b) arrangements for or with a view to the cessation of any trade which is being or is to be or may be carried on by the company or a person connected with the company;

(c) arrangements for the disposal of, or of a substantial amount of, the assets of the company or of a person connected with the company;

(d) arrangements the main purpose of which, or one of the main purposes of which, is (by means of any insurance, indemnity or guarantee or otherwise) to provide partial or complete protection for persons investing in shares in that company against what would otherwise be the risks attached to making the investment.

(2) The arrangements referred to in subsection (1)(a) above do not include any arrangements with a view to such an exchange of shares, or shares and securities, as is mentioned in section 304A(1).

(3) The arrangements referred to in subsection (1)(b) and (c) above do not include any arrangements applicable only on the winding up of a company except in a case where—

(a) the relevant arrangements include arrangements for the company to be wound up; or

(b) the company is wound up otherwise than for bona fide commercial reasons.

(4) The arrangements referred to in subsection (1)(d) above do not include any arrangements which are confined to the provision—

(a) for the company itself, or

(b) in the case of a company which is a parent company of a trading group, for the company itself, for the company itself and one or more of its subsidiaries or for one or more of its subsidiaries,

of any such protection against the risks arising in the course of carrying on its business as it might reasonably be expected so to provide in normal commercial circumstances.

(5) The reference in subsection (4) above to the parent company of a trading group shall be construed in accordance with the provision contained for the purposes of section 293 in that section.

(6) In this section “the relevant arrangements” means—

(a) the arrangements under which the shares are issued to the individual; and

(b) any arrangements made before the issue of the shares to him in relation to or in connection with that issue.

(7) In this section “arrangements” includes any scheme, agreement or understanding, whether or not legally enforceable.”

(2) In section 307(6)(a) of that Act (interest on overdue tax where relief withdrawn), after “289(6)" there shall be inserted “ or 299B(1) ”.

(3) In section 310 of that Act (information powers), in subsection (5), after “293(8)" there shall be inserted “ , 299B(1) ”.

(4) For subsection (6) of that section there shall be substituted the following subsection—

“(6) For the purposes of subsection (5) above the persons who are persons concerned are—

(a) in relation to section 289(6), the claimant, the company and any person controlling the company;

(b) in relation to section 291B(5), the claimant;

(c) in relation to section 293(8) or 308(2)(e), the company and any person controlling the company; and

(d) in relation to section 299B(1), the claimant, the company and any person connected with the company;

and for those purposes references in this subsection to the claimant include references to any person to whom the claimant appears to have made a transfer such as is mentioned in section 304(1) of any of the shares in question.”

(5) The preceding provisions of this section apply in relation to shares issued on or after 2nd July 1997.

72 Qualifying holdings for VCTs after 2nd July 1997. U.K.

(1) After paragraph 10 of Schedule 28B to the Taxes Act 1988 there shall be inserted the following paragraph—

“ Requirement that securities should not relate to a guaranteed loan

10A (1) The requirement of this paragraph is that there are no securities relating to a guaranteed loan in the relevant holding.

(2) For the purposes of this paragraph a security relates to a guaranteed loan if (and only if) there are arrangements for the trust company to be or become entitled, in the event of a failure by any person to comply with—

(a) the terms of the loan to which the security relates, or

(b) the terms of the security,

to receive anything (whether directly or indirectly) from a third party.

(3) For the purposes of sub-paragraph (2) above it shall be immaterial whether the arrangements apply in all cases of a failure to comply or only in certain such cases.

(4) For the purposes of this paragraph “third party” means any person except—

(a) the relevant company; and

(b) if the relevant company is the parent company of a trading group for the purposes of paragraph 3 above, the subsidiaries of the relevant company.”

(2) After the paragraph 10A inserted by subsection (1) above there shall be inserted the following paragraph—

“10B Requirement that a proportion of the holding in each company must be eligible shares

(1) The requirement of this paragraph is that eligible shares represent at least 10 per cent. by value of the totality of the shares in or securities of the relevant company (including the relevant holding) which are held by the trust company.

(2) For the purposes of this paragraph the value at any time of any shares in or securities of a company shall be taken (subject to sub-paragraph (4) below) to be their value immediately after—

(a) any relevant event occurring at that time; or

(b) where no relevant event occurs at that time, the last relevant event to occur before that time.

(3) In sub-paragraph (2) above “relevant event”, in relation to any shares in or securities of the relevant company, means—

(a) the acquisition by the trust company of those shares or securities;

(b) the acquisition by the trust company of any other shares in or securities of the relevant company which—

(i) are of the same description as those shares or securities, and

(ii) are acquired otherwise than by virtue of being allotted to the trust company without that company’s becoming liable to give any consideration;

or

(c) the making of any such payment in discharge, in whole or in part, of any obligation attached to any shares in or securities of the relevant company held by the trust company as (by discharging that obligation) increases the value of any such shares or securities.

(4) If at any time the value of any shares or securities held by the trust company is less than the amount of the consideration given by the trust company for those shares or securities, it shall be assumed for the purposes of this paragraph that the value of those shares or securities at that time is equal to the amount of that consideration.

(5) In this paragraph “eligible shares” has the same meaning as in section 842AA.”

(3) Subject to subsections (4) and (5) below, the preceding provisions of this section have effect in relation to accounting periods ending on or after 2nd July 1997.

(4) Subsection (1) above shall not have effect for the purpose of determining whether any shares or securities acquired by a company by means of the investment of—

(a) money raised by the issue before 2nd July 1997 of shares in or securities of the trust company, or

(b) money derived from the investment by that company of any such money,

constitute qualifying holdings of the trust company at any time.

(5) If at any time the requirement of paragraph 10B of Schedule 28B to the Taxes Act 1988—

(a) would be satisfied in relation to a relevant holding and a company if none of the old investments were held by the trust company at that time, but

(b) would not otherwise be satisfied,

that paragraph shall apply in relation to that holding as if the old investments were not held by the trust company at that time.

(6) In subsection (5) above, “old investments” means shares in or securities of the relevant company acquired by means of the investment of—

(a) money raised by the issue before 2nd July 1997 of shares in or securities of the trust company; or

(b) money derived from the investment of such money.

73 Other changes to requirements for VCTs. U.K.

(1) In each of—

(a) subsection (14) of section 842AA of the Taxes Act 1988, and

(b) sub-paragraph (1) of paragraph 6 of Schedule 15B to that Act,

(which define “eligible shares” for the purposes of enactments relating to VCTs), the word “preferential", in the second place where it occurs in that subsection or sub-paragraph, shall be omitted.

(2) In paragraph 10(3) of Schedule 28B to that Act (subsidiary to be qualifying subsidiary if it is a 90 per cent subsidiary), for “90", wherever it occurs, there shall be substituted “ 75 ”.

(3) In paragraph 3 of Schedule 28B to that Act, in sub-paragraph (3) (requirement in relation to qualifying trade of relevant company or qualifying subsidiary), for “qualifying subsidiary" there shall be substituted “ relevant qualifying subsidiary ”; and after paragraph (b) of that sub-paragraph there shall be inserted the following— “ and for the purposes of this sub-paragraph a company is a relevant qualifying subsidiary of another company at any time when it would be a qualifying subsidiary of that company if “90" were substituted for “75" in every place where “75" occurs in paragraph 10(3) below. ”

(4) In paragraph 6 of Schedule 28B to that Act, in sub-paragraphs (1)(b), (2A)(c) and (2B) (requirement as to use of money raised), for “qualifying subsidiary", wherever it occurs, there shall be substituted “ relevant qualifying subsidiary ”; and after sub-paragraph (4) of that paragraph there shall be inserted the following sub-paragraph—

“(5) For the purposes of this paragraph a company is a relevant qualifying subsidiary of another company at any time when it would be a qualifying subsidiary of that company if “90" were substituted for “75" in every place where “75" occurs in paragraph 10(3) below.”

(5) In paragraph 8(1) of Schedule 28B to that Act (requirement as to capital of the relevant company), for “£10 million" and “£11 million" there shall be substituted, respectively, “ £15 million ” and “ £16 million ”.

(6) Subsections (1) to (4) above have effect for the purpose of determining whether shares or securities are, as at any time on or after 6th April 1998, to be regarded as comprised in a company’s qualifying holdings; and subsection (5) above has effect in relation to relevant holdings issued on or after that date.

74 Other changes to EIS etc. U.K.

(1) Schedule 13 to this Act, which amends the provisions mentioned in subsection (2) below, shall have effect.

(2) The provisions are—

(a) Chapter III of Part VII of the Taxes Act 1988 (EIS income tax relief);

(b) sections 150A and 150B of the M1 Taxation of Chargeable Gains Act 1992 (EIS relief in respect of chargeable gains);

(c) Schedule 5B to that Act (EIS deferral of chargeable gains); and

(d) that Chapter as it has effect in relation to shares issued before 1st January 1994 (BES income tax relief) and section 150 of that Act (BES relief in respect of chargeable gains).

(3) Unless the contrary intention appears, the amendments made by that Schedule have effect in relation to shares issued on or after 6th April 1998.

Marginal Citations

M1 1992 c. 12.