F1PART 5ASeed enterprise investment scheme

CHAPTER 3General requirements

Introduction

257COverview of Chapter

The general requirements are met in respect of the relevant shares if the requirements of this Chapter are met as to—

(a)

the shares (see section 257CA),

(b)

the purpose of the issue (see section 257CB),

(c)

the spending of the money raised (see section 257CC),

(d)

no pre-arranged exits (see section 257CD),

(e)

no tax avoidance (see section 257CE), and

(f)

no disqualifying arrangements (see section 257CF).

The requirements

257CAThe shares requirement

(1)

The relevant shares must meet—

(a)

the requirements of subsection (2), and

(b)

unless they are bonus shares, the requirements of subsection (4).

(2)

Shares meet the requirements of this subsection if they are ordinary shares which do not, at any time during period B, carry—

(a)

any present or future preferential right to dividends that is within subsection (3),

(b)

any present or future preferential right to a company's assets on its winding up, or

(c)

any present or future right to be redeemed.

(3)

A preferential right to dividends carried by a share in a company is within this subsection if—

(a)

the amount of any dividends payable pursuant to the right, or the date or dates on which they are payable, depend to any extent on a decision of the company, the holder of the share or any other person, or

(b)

the amount of any dividends that become payable at any time pursuant to the right includes any amount that became payable at any earlier time pursuant to the right but has not been paid.

(4)

Shares meet the requirements of this subsection if they—

(a)

are subscribed for wholly in cash, and

(b)

are fully paid up at the time they are issued.

(5)

Shares are not fully paid up for the purposes of subsection (4)(b) if there is any undertaking to pay cash to any person at a future date in respect of the acquisition of the shares.

257CBThe purpose of the issue requirement

(1)

The relevant shares (other than any of them which are bonus shares) must be issued in order to raise money for the purposes of a qualifying business activity carried on, or to be carried on, by the issuing company or a qualifying 90% subsidiary of that company.

(2)

For the meaning of “qualifying business activity” see section 257HG.

257CCThe spending of the money raised requirement

(1)

The requirement of this section is that before the end of period B all of the money raised by the issue of the relevant shares (other than any of them which are bonus shares) is spent for the purposes of the qualifying business activity for which it was raised.

(2)

Spending money on the acquisition of shares or stock in a company does not of itself amount to spending the money for the purposes of a qualifying business activity.

(3)

This requirement does not fail to be met merely because an amount of money which is not significant is spent for another purpose or remains unspent at the end of period B.

257CDThe no pre-arranged exits requirement

(1)

The issuing arrangements for the relevant shares must not 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 issuing 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 issuing company or a person connected with that company,

(c)

arrangements for the disposal of, or of a substantial amount (in terms of value) of, the assets of the issuing company or of a person connected with that company, or

(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 the issuing company against what would otherwise be the risks attached to making the investment.

F2(2)

The arrangements referred to in subsection (1)(a) do not include—

(a)

any arrangements with a view to such an exchange of shares, or shares and securities, as is mentioned in section 257HB(1), or

(b)

any arrangements with a view to any shares in the issuing company being exchanged for, or converted into, shares in that company of a different class.

(3)

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

(a)

the issuing arrangements include arrangements for the company to be wound up, or

(b)

the arrangements are applicable to the winding up of the company otherwise than for genuine commercial reasons.

(4)

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

(a)

for the issuing company itself, or

(b)

if the issuing company is a parent company that meets the trading requirement in section 257DA(2)(b), for the issuing company itself, for the issuing company itself and one or more of its subsidiaries or for one or more of its subsidiaries,

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

(5)

In this section “the issuing arrangements” means—

(a)

the arrangements under which the shares are issued to the individual,

(b)

any arrangements made, before the shares were issued, in relation to or in connection with the issue, and

(c)

if before the shares were issued information on pre-arranged exits was made available to any prospective subscribers for shares in the issuing company, any arrangements made during period B.

(6)

For the purposes of subsection (5)(c) “information on pre-arranged exits” means any information indicating the possibility of making, during period B, arrangements of the kind described in paragraph (a), (b), (c) or (d) of subsection (1).

257CEThe no tax avoidance requirement

The relevant shares must be issued for genuine commercial reasons, and not as part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.

257CFThe no disqualifying arrangements requirement

(1)

The relevant shares must not be issued, nor any money raised by the issue spent, in consequence or anticipation of, or otherwise in connection with, disqualifying arrangements.

(2)

Arrangements are “disqualifying arrangements” if—

(a)

the main purpose, or one of the main purposes, of the arrangements is to secure—

(i)

that a qualifying business activity is or will be carried on by the issuing company or a qualifying 90% subsidiary of that company, and

(ii)

that one or more persons (whether or not including any party to the arrangements) may obtain relevant tax relief in respect of shares issued by the issuing company which raise money for the purposes of that activity or that such shares may comprise part of the qualifying holdings of a VCT,

(b)

that activity is the relevant qualifying business activity, and

(c)

one or both of conditions A and B are met.

(3)

Condition A is that, as a (direct or indirect) result of the money raised by the issue of the relevant shares being spent as required by section 257CC, an amount representing the whole or the majority of the amount raised is, in the course of the arrangements, paid to or for the benefit of a relevant person or relevant persons.

(4)

Condition B is that, in the absence of the arrangements, it would have been reasonable to expect that the whole or greater part of the component activities of the relevant qualifying business activity would have been carried on as part of another business by a relevant person or relevant persons.

(5)

For the purposes of this section it is immaterial whether the issuing company is a party to the arrangements.

(6)

In this section—

“component activities” means—

(a)

if the relevant qualifying business activity is activity A (see section 257HG(2)), the carrying on of a qualifying trade, or preparing to carry on such a trade, which constitutes that activity, and

(b)

if the relevant qualifying business activity is activity B (see section 257HG(4)), the carrying on of research and development which constitutes that activity;

“qualifying holdings”, in relation to the issuing company, is to be construed in accordance with section 286 (VCTs: qualifying holdings);

“relevant person” means a person who is a party to the arrangements or a person connected with such a party;

“relevant qualifying business activity” means the activity for the purposes of which the issue of the relevant shares raised money;

“relevant tax relief”, in respect of shares, means one or more of the following—

(a)

SEIS relief in respect of the shares;

(b)

EIS relief in respect of the shares;

(c)

F3SI relief under Part 5B in respect of the shares;

(d)

relief under Chapter 6 of Part 4 (losses on disposal of shares) in respect of the shares;

(e)

relief under section 150A or 150E of TCGA 1992 (enterprise investment scheme) in respect of the shares;

(f)

relief under Schedule 5B to that Act (enterprise investment scheme: re-investment) in consequence of which deferral relief is attributable to the shares (see paragraph 19(2) of that Schedule);

(g)

relief under Schedule 5BB to that Act (seed enterprise investment scheme: re-investment) in consequence of which SEIS re-investment relief is attributable to the shares (see paragraph 4 of that Schedule).