ERSM70010 - Securities Acquired for less than Market Value

Overview

General earnings charge takes priority

It is important to remember that where shares or other securities are acquired by reason of employment for less than their market value, then there will normally be a general earnings charge on the money’s worth of those securities, less anything paid for them. See ERSM20500 for guidance on the money’s worth charge.

In certain circumstances the acquisition of securities for less than their market value may not be caught, or fully caught, by the money’s worth charge.

• The acquisition of securities may not be “earnings”– for example, a resident but not ordinarily resident employee exercising an option is acquiring securities, not as an employee but as an option-holder, and is not within Chapter 5 on securities options. The charge will be under Chapter 3C.
• Normally the money’s worth and the market value per TCGA92/S272 are the same, but where they differ any additional value over and above the money’s worth value is chargeable under Chapter 3C.

However a money’s worth charge takes priority over one under Chapter 3C, see ERSM70030

History

This legislation was first introduced in 1976 to tackle avoidance using partly-paid shares (shares where not all the subscription price is paid and the shareholder remains liable to pay up the balance – the call). It was quickly noticed that it also taxed options exercised by employees who were not ordinarily resident (old Case II of Schedule E) and were therefore not within the options legislation (now at Chapter 5 – see ERSM110010).

The provisions were incorporated in ICTA88/S162 and were rewritten as Chapter 8 of Part 3 ITEPA 2003 as from 6 April 2003. From the 16 April 2003 Schedule 22 FA 2003 amended the provisions and they moved to Part 7 ITEPA as Chapter 3C, although the annual charge remains within Part 3 at ITEPA03/S173 et seq.

Pre-16 April 2003 acquisitions of securities

Any security within the charge, but acquired pre-16 April 2003 is grandfathered in that the old legislation continues to apply to it – see ERSM71000.

What is taxed?

Where the employee pays less than the actual market value of the securities or has an outstanding obligation to make further payments (calls), the taxable amount is the difference between:

• what is paid by the employee, and
• the actual market value of the securities assuming any future obligations to pay by way of loan or call have already been fulfilled.

See ERSM70020.

Exceptions

There are some significant exceptions – see ERSM70030.

How is it charged?

The charging mechanism mirrors that for beneficial loans (see ERSM70110). The undervalue or unpaid call is treated as a notional loan on which there is:

1. an annual charge under the beneficial loans legislation (see ERSM70130), and
   
2. a final charge on sale of the securities or release of liability (see ERSM70140).