Employment Related Securities: a reminder in advance of the tax year end

This post is part of our Entrepreneurial team’s regular series of blogs.

This week I thought it would be a good idea to provide a very broad overview of the Employment Related Securities (ERS) regime, which rears its head following the end of the tax year (5 April 2021). This has (often confusing) annual reporting requirements to HMRC, which can frequently catch companies off guard.

What falls under the ERS regime?

ERS can be broadly defined as securities (usually shares) in a company which are acquired as a consequence of employment or directorship. Shares in a company where the person is an employee or director will very likely be deemed to be ERS even if, in fact, they are not acquired as a consequence of employment. The simplest rule of thumb is to let your accountant or tax advisor know if any employees or directors have acquired shares or options in your company during the year, as they will be able to advise you on what needs to be reported to HMRC.

As noted above, most times shares acquired by an employee or director will be deemed to be ERS. It’s worth bearing in mind there are only a few notable cases which the legislation will accept are not related to their employment – i.e. they are for another specific reason. The most common is the ‘family and friends’ exception, where the opportunity to acquire securities is made in the normal course of domestic, family or personal relations.

As an example, let’s take a director who is offering shares in the family company to his children. The children are also employees of the company, but are only being offered shares as he would like to pass on his shares to them for family reasons. On its own, this would qualify under the family and friends exception. But, if the same director offered all his employees (including his children) a bonus at the end of the year in the form of shares, then it would likely be the case that his children were receiving the shares by virtue of their employment, rather than because they are family.

What needs to be reported to HMRC?

Where ERS events have occurred during the year, companies need to report these to HMRC between 6 April and 6 July following the end of the tax year. Companies will need to set up a scheme on HMRC’s portal to do so, and it’s important to remember that, once a scheme is opened, a return will need to submitted each year for each open scheme even if nothing has happened.

The most common events reported are employees being granted shares or options, options being exercised, or options lapsing (usually when an employee leaves the company). Where companies grant EMI options, the grant is not reported as part of the annual return, but instead is notified separately within 92 days of grant. However, companies with EMI schemes would still need to prepare and submit an EMI annual return for any exercises or lapses during the year, and an ERS return for any unapproved options granted (or exercised or lapsed) e.g. options granted to directors who did not qualify for EMI.

It’s also worth emphasising that although not all ERS events will give rise to a tax charge, they will still need to be reported to HMRC to avoid penalties.

If you have any queries at all about ERS, please contact us at Chiene + Tait.