As we informed you on the 23rd November 2016, the Chancellor had (in his Autumn Statement) announced several changes that may be made to the SITR rules. If made, these changes will apply to all SITR investments made after 5 April 2017. Here we provide further details of each aspect of the SITR changes and further analysis, where possible, from leading SITR tax adviser, Neil Pearson.
NB. At the time of writing this we are relying on press releases for information – no draft legislation has yet been published on SITR. So, whilst we’ll do our best to flag up any potential changes, we don’t yet have a confirmed picture of exactly how changes will impact on SITR investments.
This material is provided for information purposes only and are not intended to represent investment advice. Further advice should be sought before acting upon any information contained within this document.
Here is the text of the latest announcement, made on 5 December 2016:
a) The social enterprise
A social enterprise cannot raise more than around approximately £290,000 under SITR in any rolling three-year period. However, this cap is calculated using a formula which depends on the GBP/euro exchange rate and the prevailing tax rates on the date the investment is made. So, the exact size of the cap can and will fluctuate daily.
If the social enterprise (or any of its subsidiaries) has ever received any “de Minimis” State Aid, that state aid counts towards that limit and so will reduce the total amount that the social enterprise can raise under SITR.
This relatively low limit means that SITR is not available to fund larger projects, and is viewed by many as a material barrier to the hoped-for expansion of SITR. So the Government announced on 3 December 2014 that it would seek to increase this limit by introducing:
- A £5m cap per social enterprise in any rolling twelve-month period, but
- Subject to an aggregate lifetime cap of £15m per social enterprise.
In his Autumn Statement on 23 November 2016 the Chancellor announced that agreement had been reached with the EU to introduce a new lifetime cap to £1.5m per social enterprise. However, only earlier stage social enterprises (i.e. enterprises that have made their first “commercial sale” within the previous 7 years) will be eligible to take advantage of this increased cap. Social enterprises that made their first commercial sale more than 7 years ago will remain eligible for SITR, but will be subject to the existing lower limit. The details of this proposed new lifetime cap, and the eligibility criteria for enterprises wishing to take advantage of that increased cap, have yet to be published.
SITR is targeted at small and medium sized enterprises. Larger social enterprises will not qualify for SITR. For these purposes, the size of an enterprise is assessed in two ways, one of which is by reference to the numbers of employees
At the date the SITR investment is made, the social enterprise must have no more than the equivalent of 500 full time employees. If the social enterprise has subsidiaries, employees of all subsidiaries must also be included. HMRC regard a full-time employee as someone whose standard working week (excluding lunch breaks and overtime) is at least 35 hours. Where there are part-time employees their full-time equivalence can be calculated on any ‘just and reasonable’ basis. So a social enterprise (and subsidiaries) could have appreciably more than 500 employees at the time the SITR investment is made, but, if many of them are part-time, could still come under the limit.
In his Autumn Statement on 23 November 2016 the Chancellor announced the cap on the full time equivalent number of employees will be reduced from 500 to 250.
c) Trading activities
SITR is a tax relief to encourage investments that will support trading activities. It is not another form of charitable giving. And there are restrictions on the types of trades that can be supported with SITR investments.
So, a social enterprise, if it is to be a qualifying social enterprise, must either carry on a “qualifying trade” itself, or own a subsidiary that carries on a qualifying trade.
In his Autumn Statement on 23 November 2016 the Chancellor announced that it intended to add the following to the list of excluded activities that cannot be supported with SITR funding:
- asset leasing
- on-lending of monies
- nursing homes and residential care homes (although the Government intends to introduce an accreditation system to allow such trades to qualify for SITR funding in the future)
d) How the SITR money must be used
If the social enterprise is an accredited social impact contractor, all of the money raised from the SITR investment must be employed by it in carrying out the social impact contract.
For all other forms of social enterprise, all of the money raised from the SITR investment must be employed for the purposes for which it was raised i.e. to support a qualifying trade carried on by the social enterprise or by a “90% social subsidiary” of the social enterprise.
In his Autumn Statement on 23 November 2016 the Chancellor announced that the SITR rules would be amended to ensure that SITR Monies could not be used to pay off existing loans. Although the details of this proposed new restriction have yet to be published, it seems that social enterprises will no longer be able to refinance existing debts with potentially cheaper and longer term SITR funding.
e) Investors who have received “value” from the social enterprise
If the investor (or his or her associate) has received any form of “value” from the social enterprise (or any of its subsidiaries) during the 12 months before the investment is made, the amount on which SITR may be claimed will be reduced by the amount of value received.
In his Autumn Statement on 23 November 2016 the Chancellor announced that the SITR rules would be amended to clarify that individuals may only claim SITR if they are “independent from the social enterprise”. However, the details of the proposed clarification on that point have yet to be published.
f) No tax avoidance
Unsurprisingly, tax avoidance cannot be the main purpose, or one of the main purposes, of making an SITR investment.
Obviously, the tax reliefs available to investors under the SITR legislation are not treated as “tax avoidance” for these purposes. However, if an investor is offered an SITR qualifying investment as part of a wider tax-saving scheme, the investor may well be disqualified from claiming SITR on that particular investment.
In his Autumn Statement on 23 November 2016 the Chancellor announced that the SITR rules would be amended to include a provision to exclude investments where arrangements are put in place with the main purpose of delivering a benefit to an individual or party connected to the social enterprise. However the details of this proposed new anti-avoidance rule have yet to be published.
To Note – Pre-investment: advance assurance
Any social enterprise can approach HMRC and ask for an advance assurance that a proposed investment will qualify for SITR. This is not compulsory. But it is often advisable, because:
- It gives investors certainty that the tax relief will be available (so may help the fund-raising process as some investors may not invest without the advance assurance), and
- HMRC will, in their response, flag up any feature of the investment that does not comply with the various criteria. This would, therefore, enable the social enterprise to make changes in order to conform with the legislation (in many cases it is not possible to put things right after the investment has been made).
The application for advance assurance must be in writing, and can be submitted by post or email. It can take HMRC anything up to eight weeks to respond.
As part of the Autumn Statement on 23 November 2016 HM Treasury launched a consultation on the future of the advance assurance system. The consultation documentation suggests that the existing system needs change, and puts forward a number of different models for the advance assurance process going forward. One of the proposals is that the process be scrapped altogether, leaving investors with no way in which they could be assured, in advance of making an investment, that HMRC would accept that the investment would meet all of the eligibility criteria for SITR. The consultation closes mid-February 2017, so changes may be anticipated later this year.
As there still seem to be a lot of questions about the particulars left unanswered, watch out for further updates from us as this develops.
To read our press release on the SITR expansion, click here.
Or to read the latest on the track record of SITR investments, click here.