If you are looking to plug a funding gap quickly and easily, whilst ensuring EIS tax relief for your investors, there are few options available. A funding round from new or existing investors can be a lengthy process, requiring due diligence, valuation agreement and long-form legal documents.
A convertible loan note sometimes causes problems under the ‘Receipt of Value’ rules or the ‘Independent Investor’ requirement, and often remains on the company’s balance sheet until the company stops looking for EIS investors and all EIS investments have been held for three years. Potentially a long wait!
Advance Subscription Agreements (ASA) are a useful option. A valuation doesn’t need to be immediately agreed, the legal process is quite straightforward, and the company doesn’t need to worry about finding the funds to repay a loan or interest. Best of all, if implemented correctly, investors can get EIS relief on the investment! It seems like a win-win situation.
Advance assurance is strongly recommended by HMRC to companies looking for EIS investment. However, with no official parameters or guidance there has always been a large element of the unknown.
HMRC released guidance on 30 December 2019 which sets out the key points to consider when using or drafting an ASA for EIS investors. A couple of important points are as follows:
- Simplicity will help the qualifying status!
- It cannot permit refunds under any circumstances.
- No variation, cancellation or assignment.
- No interest payable.
- A longstop date (the date the shares must be issued if no funding round occurs) no more than 6 months later.
- Advance assurance must be sought BEFORE an ASA is entered into if it is being sought.
An interesting point to note is that the EIS compliance forms will need to be completed once the shares have been issued. So, it must be shown that all the EIS requirements are met at the date of that issue. One thing to highlight is the ‘Use of funds’ requirement; can the company show that the funds from the ASA are being used to develop and grow the trade, at the date of conversion into shares? The company needs to show why it needs those funds at the date of conversion, and the purpose cannot simply be to meet existing day-to-day expenditure.
The HMRC guidance is helpful but by no means gives companies, advisors or investors a guarantee that an investment under an ASA will qualify for relief. Advance assurance is always the feather in any company’s cap when seeking any investment under EIS, and when using an ASA it is even more important. HMRC’s new guidance can be found here.
Kirsty Paton, Director