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SEIS without advance assurance

Do you need to advance assurance and can you tidy up for an over enthusiastic client?

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I have been involved with SEIS advance assurance a handful of times, so feel fairly comfortable with the various conditions for a company and investor. While I appreciate it is normal to obtain advance assurance, I understand there is no requirement to do so.

 

I have a potential new (and previously unrepresented) client who had heard of SEIS and gung ho raised finance and issued shares (although, somewhat typical of such clients, the record keeping is not great- especially with regard to the filing at Companies House). The company should qualify for SEIS. The investor should qualify for relief. But they have naturally not done advanced assurance and therefore there is no SEIS2 or SEIS3s.

 

At a previous firm, the tax partner would not allow us to claim SEIS relief for investors without an SEIS3 form. My first question is was that particular partner being prudent to protect against HMRC coming back and making enquiries? I assume you can still claim tax relief  without an SEIS3 but it is higher risk.

 

I assume it is still best practice to obtain advance assurance even after the event? That said, my most recent experience of the HMRC's Venture Capital Relief Team found us waiting months at a time for a response. I assume their resources have been stretched due to COVID.

 

Regarding the lack of paperwork, will going back and correcting the filings and ensuring the necessary is paperwork is in place, which would reflect the understanding of both the company and investor at the time, undermine or jeopardise the SEIS status? For example, could HMRC reasonably argue that the investment without the necessary filings at CH means that this was a loan until the shares are formally issued (therefore meaning the shares were converted and not issed by way of cash, which would mean SEIS is prevented)? I know back-dating share issues is not possible, but if it is to formalise something agreed at the time, would this still be "back-dating"?

 

Any thoughts or experience would be much appreciated.

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By The Dullard
24th Jun 2021 13:34

Wait? What?

No. You can't claim relief without an SEIS3, and you won't get an SEIS2 authorising you to issue the SEIS3s until you've filed an SEIS1 (at the appropriate time). That's the compliance statement, which is a different thing from advance assurance. Are you sure you're completely au fait with this?

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By Duggimon
24th Jun 2021 13:45

Whether you've got advance assurance or not, if you're using SEIS you need to file a SEIS 1 form, for which you will want correct accounts, forecasts and a raft of other information.

I would not advise anyone to claim the tax relief without the SEIS 3 form, there is no guarantee until it's issued regardless of how likely you think it is to be approved, particularly when the application is subject to sufficient documentary evidence being provided and the company being historically dicey with their documentation, and without the SEIS 3 form it doesn't matter whether the investment ought to qualify, it's not a legitimate claim.

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