The 2018 Budget has caused significant concerns for shareholders
in companies that have multiple share classes carrying different rights and
entitlements (also known as alphabet shares).
The new proposed rules change the definition of ‘personal company’
in the ER legislation in such a way as to prevent shareholders in a company
with alphabet shares from claiming ER.
On 21 December 2018, the Government proposed a significant
amendment to the Finance Bill rules defining what constitutes a ‘personal
company’ for ER purposes.
The revised
legislation retains the old qualifying criteria (that the shareholder must have
at least 5% of the ordinary share capital of the company and 5% of the
voting rights) but adds in two new conditions, at least one of which will need
to be met:
- The shareholder must
be entitled to 5% of the profits available for distribution to equity holders and
5% of the assets available for distribution on a winding up (these were the
changes originally announced in the 2018 Budget);
AND/OR
- In the event of a disposal
of the ordinary share capital of the company the shareholder would be entitled
to 5% of the disposal proceeds.
Additional provisions set out the process for determining whether
the second test is met at any one time. The legislation does not define
the term ‘proceeds’, which implies that it may extend to some payments made to
debt-holders on a sale of a company.
In its rationale for making the changes, the Treasury has stated that it has laid these amendments to ensure that the conditions for benefitting from the relief operate as intended and to continue ‘supporting enterprise creation and growth in the UK.’