Gifting shares

We work with employers considering providing shares to employees and directors by way of a gift. In many cases our advice starts with assessing the commercial drivers, pros and cons, other options for incentives and future implications. Legal documents and paperwork are generally a small aspect of the work.

We also advisse on and review gifted shares for employees and directors.

Gifting company shares to employees

The shares for employees provided by way of a gift can come from either existing shares already owned by shareholders or from newly issued shares.  Shares for employees can be given to employees free, at discounted rates or at any value determined by the directors.

Giving employees existing shares

Existing shareholders might agree to transfer a proportion of their existing shareholding as gifts to employees.  Unfortunately, this counts as a disposal for capital gains tax purposes. This route’s attractiveness depends on the capital gains tax bill that results from the transfer.  In addition, employees would receive dividends at the same rate as the shareholder who gifted the shares. A benefit of using existing shares is that there is no dilution for other shareholders.

Issuing new shares

Using newly issued shares for employees has some tax benefits for existing shareholders.  The advantages are:

• The newly issued share route does not carry a capital gains tax charge for existing shareholders.
• You can create a new class of shares for employees. The dividend rate paid on shares held by employees could differ from the existing shareholders’ dividend rate.

There are reporting obligations at Companies House when shares are issued.

Newly issued shares – dilution

Giving newly issued shares to employees will dilute existing shareholders shareholding. It is possible to confine the dilution to specific shareholders. However, confining dilution can give rise to a tax charge for existing shareholders if they are caught by the anti-tax avoidance value shifting provisions.

Compared to an existing share transfer, newly issued shares are usually preferred.

Think about what happens if the employee leaves

When an employee leaves, unless otherwise stated, he or she retains the gifted shares. So, ex-employees would continue to benefit from the company’s growth. Ex-employees night even be able to stall or scuppera company sale by refusing to sell their shares.

The way around this problem is to include provisions in the company’s articles of association and the shareholders agreement.

Use of good and bad leaver provisions when gifting shares

It is common to distinguish between good and bad leavers. Good leavers leave because of e.g. death, disability or the directors want them to continue to benefit.  Bad leavers are usually anybody who is not a good leaver and should not continue to benefit from the company’s growth.

Retaining the ability to exit

If the company is sold, the employee will be treated as any other shareholder.  It will be important to make sure that the articles include appropriate drag along rights to protect the other shareholders from the risk an employee does not agree to sale. Without drag along rights the business may be unsaleable.

Restricting employee shareholder rights

It is possible to provide different rights to different types of shareholders.  For example, upon a gift of shares to employees, rights to voting may be restricted.  The restrictions are usually dealt with via an amendment to the articles.  For tax purposes it is preferable to deal with the restriction before the employee is awarded the shares.  This is because restrictions lifted after the employee has become a shareholder can cause unforeseen tax liabilities.

Tax payable on the gift of shares

The issue of gifting shares to employees contains some of the most draconian anti-avoidance legislation within HMRC’s powers. What should be simple, can be extremely complex. Unexpected and unplanned tax liabilities easily arise.  Tax needs to be considered:

• On the gift of shares; and
• If once the shares are gifted the rights are varied in any way; and
• Upon the sale or transfer of shares.

Basic income tax rule applying on the gifting of shares to employees

The basic rule is if an employer gifts shares to an employee, then the employee is deemed to be in receipt of a benefit in kind on which income tax and sometimes national insurance is payable.

Having paid the tax on the shares at the time of gift, the idea is that the profit made on sale or transfer is then taxed as capital as explained below.

Valuation of shares gifted to an employee

Providing shares for employees in private companies requires a valuation of shares. This is to ascertain the tax payable on the gift.  Valuing the shares in private companies where there is no ready market for tax purposes can be complex. However, the amount of tax payable by the employee or director on the gift of shares will hang on the valuation HMRC places on the deemed benefit in kind.

We do undertake negotiations with HMRC for employers and employees.

Dividends

Dividends are taxed at lower rates than income and do not incur employer’s or employee’s national insurance. They are more tax efficient than salary. There will be tax issues if HMRC assess that the employer has paid dividends in place of salary.  Meticulous board minutes justifying decisions should be made contemporaneously. Within the HMRC armoury is a body of anti-avoidance legislation known as the disguised remuneration rules which, if imposed, will decrease the tax advantage of receiving dividends.

Sale or transfer of the shares gifted

The intention is that the employee will make a gain on sale or transfer and that gain is assessed to capital gains tax. The rate of capital gains tax is much lower than the rate of income tax and national insurance on equivalent profits.

The company can buy the shares back from the employee as it could from any other shareholder.  The employee can qualify for the tax beneficial treatment on a buy back of shares.

Implementing the gift of shares

There are a number of steps for employers to consider before gifting shares to employees.  Some of the key steps include:

• Is there a better alternative to gifting shares to employees? –  this could include EMI share options for example.
• Value the shares – The employer should record the details relating to the value of the shares when they are gifted. This is because records will be required when dealing with the upfront and possible future income tax liability arising when gifting shares to employees.
• Check shareholder agreement and/or the company articles – will giving shares to employees require a change to the articles and/or shareholder agreement?

We are specialists in all forms of employee incentives including gifts of shares to employees. Please do call or email us to find out more and how we can help.