Income and Corporation Taxes Act 1988

135 Gains by directors and employees from share options. U.K.

(1) M1 Subject to section 185, where a person realises a gain by the exercise, or by the assignment or release, of a right to acquirbe shares in a body corporate obtained by that person as a director or employee of that or any other body corporate, he shall be chargeable to tax under Schedule E on an amount equal to the amount of his gain, as computed in accordance with this section.

(2) M2 Without prejudice to section 185, where tax may by virtue of this section become chargeable in respect of any gain which may be realised by the exercise of a right which is not capable of being exercised more than [F1 ten] years after it is obtained, tax shall not be chargeable under any other provision of the Tax Acts in respect of the receipt of the right.

(3) M3 Subject to section 136(4)—

(a) the gain realised by the exercise of any such right at any time shall be taken to be the difference between the amount that a person might reasonably expect to obtain from a sale in the open market at that time of the shares acquired and the amount or value of the consideration given whether for them or for the grant of the right; and

(b) the gain realised by the assignment or release of any such right shall be taken to be the difference between the amount or value of the consideration for the assignment or release and the amount or value of the consideration given for the grant of the right;

(a just apportionment being made of any entire consideration given for the grant of the right to acquire those shares and other shares or otherwise for the grant of the right to acquire those shares and for something besides).

(4) For the purposes of subsection (3) above, neither the consideration given for the grant of the right nor any such entire consideration as is mentioned in that subsection shall be taken to include the performance of any duties in or in connection with the office or employment by reason of which the right was granted, and no part of the amount or value of the consideration given for the grant shall be deducted more than once under that subsection.

(5) M4 Where such a right as is mentioned in subsection (1) above is obtained as mentioned therein and is capable of being exercised later than [F1 ten] years after it is obtained, and the receipt of the right is chargeable to tax under any other provision of the Tax Acts, then—

[F2 (a) the amount so charged shall be deducted from any amount which is chargeable under subsection (1) above by reference to the gain realised by the exercise, assignment or release of that right; and]

(b) for the purpose of any such charge to tax in relation to the receipt of the right, the value of the right shall be taken to be not less than the market value at the time the right is obtained—

(i) of the shares which may be acquired by the exercise of the right, or

(ii) of shares for which shares so acquired may be exchanged,

reduced by the amount or value (or, if variable, the least amount or value) of the consideration for which the shares may be so acquired.

(6) M5 subject to subsection (7) below, a person shall, in the case of a right granted by reason of his office or employment, be chargeable to tax under this section in respect of a gain realised by another person—

(a) if the right was granted to that other person, or

(b) if the other person acquired the right otherwise than by or under an assignment made by way of a bargain at arm’s length, or if the two are connected persons at the time when the gain is realised,

but in a case within paragraph (b) above the gain realised shall be treated as reduced by the amount of any gain realised by a previous holder on an assignment of the right.

(7) A person shall not be chargeable to tax by virtue of subsection (6)(b) above in respect of any gain realised by another person if the first-mentioned person was divested of the right by operation of law on his bankruptcy or otherwise, but the other person shall be chargeable to tax in respect of the gain under Case VI of Schedule D.

(8) M6 In any case where—

(a) a person has obtained any such right to acquire shares as is mentioned in subsection (1) above (“the first right”); and

(b) as to any of the shares to which the first right relates, he omits or undertakes to omit to exercise the right or grants or undertakes to grant to another a right to acquire the shares or any interest in them; and

(c) in consideration for or otherwise in connection with that omission, grant or undertaking, he receives any benefit in money or money’s worth;

he shall be treated for the purposes of this section and section 136 as realising a gain by the assignment or release of the first right, so far as it relates to the shares in question, for a consideration equal to the amount or value of the benefit referred to in paragraph (c) above.

(9) Where subsection (8) above has had effect on any occasion, nothing in that subsection affects the application of this section in relation to a gain realised on a subsequent occasion, except that on that subsequent occasion so much of the consideration given for the grant of the first right as was deducted on the first occasion shall not be deducted again.

Textual Amendments

F1 Word in s. 135(2)(5) substituted (with effect in accordance with s. 49(2) of the amending Act) by Finance Act 1998 (c. 36), s. 49(1)

F2 S. 135(5)(a) substituted (with effect in accordance with s. 37(2) of the amending Act) by Finance Act 2002 (c. 23), Sch. 6 para. 1

Modifications etc. (not altering text)

C1 S. 135 applied (6.3.1992 with effect as mentioned in s. 289(1)(2) of the amending Act) by Taxation of Chargeable Gains Act 1992 (c. 12), ss.120, 289 (with ss. 60, 101(1), 171, 201(3)).

C2 S. 135 excluded (28.7.2000) by Finance Act 2000 (c. 17), s. 62, Sch. 14 para. 44 (with Sch. 14 paras. 53, 55)

C3 S. 135 excluded (28.7.2000) by Finance Act 2000 (c. 17), s. 62, Sch. 14 para. 45 (with Sch. 14 paras. 53, 55)

C4 S. 135 excluded by Finance Act 2000 (c.17), Sch. 14 para. 45(4) (as substituted (with effect in accordance with Sch. 14 para. 13(2) of the 2001 amending Act) by Finance Act 2001 (c. 9), Sch. 14 para. 7

C5 S. 135 excluded by Finance Act 2000 (c.17), Sch. 14 para. 46(2A) (as substituted (with effect in accordance with Sch. 14 para. 13(2) of the 2001 amending Act) by Finance Act 2001 (c. 9), Sch. 14 para. 8

C6 S. 135 excluded by Finance Act 2000 (c.17), Sch. 14 para. 53(2D) (as substituted (with effect in accordance with Sch. 14 para. 13(2) of the 2001 amending Act) by Finance Act 2001 (c. 9), Sch. 14 para. 11(2)

C7 S. 135(6) modified (24.2.2003) by Proceeds of Crime Act 2002 (c. 29), ss. 448, 458(1), Sch. 10 para. 30; S.I. 2003/120, art. 2, Sch. (with arts. 3-5, as amended by S.I. 2003/333, art. 14)

Marginal Citations

M1 Source—1970 s.186(1); 1984 s.38

M2 Source—1970 s.186(2); 1972 s.77(1); 1984 s.38

M3 Source—1970 s.186(3)

M4 Source—1972 s.77(1)-(3)

M5 Source—1970 s.186(4), (5)

M6 Source—1970 s.186(5A), (5B); 1986 s.26(1)