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There is an enterprise management incentives (EMI) commitment of working time requirement which must be satisfied by any employee in order to qualify to be granted an EMI share option. An employee is eligible for EMI purposes only if their average amount per week of ‘committed time’ equals or exceeds:
Once an EMI option has been granted, this committed working time requirement continues to apply, and in addition to this the employee must actually spend a statutory minimum amount of time on the business of the company each tax year otherwise there can be a disqualifying event for EMI purposes in relation the options, which can result in income tax and possibly employee’s and employer’s National Insurance contributions being payable if the EMI options aren’t exercised within the following 90-day period, see Practice Note: EMI and disqualifying events.
If employees are furloughed as part of the Coronavirus Job Retention Scheme, there is a potential risk EMI tax reliefs may be lost as a disqualifying event will occur. However, legislation will be introduced in Finance Bill 2020 to modify Schedule 5, Part 4 to the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003) which sets out the requirement that EMI participants must meet a minimum commitment of 25 hours working time per week or 75% of working time subject to a small list of exceptions. A new exception will be introduced at paragraph 26 at subsection (3) alongside the other list of exceptions such as injury, ill-health or disability which will give effect to a new time limited exception to the working time requirement for employees who are furloughed or working reduced hours because of coronavirus. The new exception will only apply for the purposes of determining whether a disqualifying event occurs as set out in ITEPA 2003, s 535. This measure will introduce a time-limited exception to the disqualifying event rules so that participants are not forced to exercise their options much earlier than planned. HMRC will accept that, from 19 March 2020, if an employee with share options granted before that date would otherwise have met the scheme requirements but did not do so for reasons connected to the coronavirus pandemic, the time which they would have spent on the business of the company will count towards their working time. The modifications made by the clause have effect until 5 April 2021 unless otherwise extended.
See: New Clause 32: Enterprise management incentives: disqualifying events and Enterprise Management Incentives (EMI)—Amendment of working time requirements.
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