Private Equity Bulletin - Corporate and Company Law

Entrepreneurs' Relief – Help with ABCs

Having tightened the tests to be met for Entrepreneurs' Relief (ER), without consultation, the Government has now listened to the industry and produced a solution which should work in most cases.

In order to counter tax planning which had the aim of obtaining undeserved ER, by creating "tailored" shares i.e. shares designed to obtain relief without any real commercial downside risk, the test for ER was widened in the October Budget. Shareholders had previously been required to meet the old test for a "personal company" of having at least 5% of ordinary shares by nominal value and 5% of the voting rights of the company deriving from these shares. The new tests added that with effect from 29 October 2018, the individual should also be beneficially entitled to:

i) at least 5% of profits available for distribution to equity holders; and

ii) at least 5% of assets available to equity holders on a winding up.

No-one could argue that this widening would not have restricted the relief, but it had the unfortunate effect of stopping ER being given in common situations where there was no avoidance. One such instance is alphabet stock: if shareholders A, B and C have A, B and C class shares, they would fail this new test. This is because different dividends could be declared on the different classes and therefore shareholders are not strictly entitled to the profits, as they would never know what they were going to receive until the dividends were actually declared. This would have been the case even if A, B and C each owned a third of the ordinary share capital and there were no other shareholders.

After protests from the industry, HMRC announced an alternative test to these new tests. These were announced in December but have effect from 29 October 2018 (Budget day) as if this had been the drafting all along. This alternative test measures "...whether in the event of a disposal of all of the ordinary shares, the individual in question would receive at least 5% of the proceeds." If so, provided the old tests were also met, the relief would be available. Therefore if in our example A, B and C each receive a third of the sale proceeds, then they would obtain ER despite not being technically entitled to dividends and assets on a winding up.

Preparing Technology Arrangements for Brexit

The ultimate form of the UK's exit from the European Union shall remain a hotly debated topic.

The purpose of this article is to highlight some key risks of either the No Deal scenario or a deal on the terms of the Draft Withdrawal Agreement (as advocated by Prime Minister Theresa May) which relate specifically to technology arrangements and the steps to mitigate these risks.

1. PERSONAL DATA ISSUES

UK businesses will need to consider the basis upon which personal data can be transferred internationally. The UK government has indicated that it will (continue to) treat the remaining EU countries as having adequate data protection regimes, so no additional steps will need to be taken to transfer personal data to the remaining EU countries.

What is currently less clear is whether transfers of personal data from the remaining EU countries to the UK will be permitted on the basis that the UK is deemed to (continue to) have an adequate data protection regime, especially in a No Deal scenario. The simplest solution is likely to be putting in place the EU approved Standard Contractual Clauses.

Businesses exporting personal data from the UK to third countries will also have to ensure that they comply with the UK specific rules on export of personal data from the UK to third countries. A particular point to look out for is whether all the countries which the EU has accepted as having an adequate data protection regime will be regarded by the UK as also having an adequate data protection regime.

2. PROTECTION OF DATABASES

When the UK leaves the EU, the EU Database Directive, which created the Sui Generis right to protect databases, will cease to apply to the UK. Under the Draft Withdrawal Agreement, a database will continue to be protected where it is created by UK nationals, natural persons with habitual residence in the UK or businesses established in the UK. In the No Deal scenario, the ironic position will be that EU nationals, residents and businesses in the UK will acquire the Sui Generis right when they develop databases in the UK but UK nationals, residents and businesses will not.

UK domestic businesses can minimise the risk of losing protection for databases developed in the UK by involving developers with an EU connection. Also, the database would be protected internationally through the copyright system if sufficient creativity can be established for the database to be protected as a copyright work.

3. FREE MOVEMENT OF GOODS

Fractured supply chains is an area of concern in a No Deal scenario for technology arrangements where continued access to hardware and consumables will be required. To prepare for this, businesses should be revisiting their supply chains and inventory to ensure that the impact of delays in customs processes etc. are minimised.

In the Draft Withdrawal Agreement scenario, the disruption should be minimal as goods first lawfully put on the market in the EU or in the UK prior to the end of the transition period can circulate between the two markets before they reach the end user.

4. FREE MOVEMENT OF PEOPLE

Businesses should carry out a 'people audit' to map out the locations of the direct workforce and, for outsourced arrangements, those of its third party suppliers.

Regardless of the outcome of the EU negotiations, the UK government will proceed with its settlement scheme which will allow EU nationals to apply for settled status, provided they have arrived in the UK by the end of 2020. Businesses should consider helping those who qualify for the scheme to take advantage of it, particularly if they are in key roles.

In relation to UK nationals based in the EU, some EU governments—for example the Netherlands—have made welcoming noises, promising measures to allow such individuals to remain there after March 2019 in the event of a No Deal scenario. Businesses should focus on those EU countries that are most relevant to its workforce and monitor developments of any such legislation.

5. REVIEW TECHNOLOGY SUPPLY AGREEMENTS

For all material technology arrangements contractual frameworks should be reviewed in the context of Brexit. Key areas to review include: (1) Pan-European arrangements, (2) territorial scope of licences, (3) location of personal data, (4) rights in databases, (5) currency/inflation indices, (6) compliance with laws obligations and (7) TUPE/ARD on termination.

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