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SEIS EIS Published: 
Jun 5, 2019
Updated: May 05, 2023
4 min read
Expert reviewed

SEIS / EIS for non-UK companies: how to qualify as a foreign company

Many people don’t know that non-UK companies can offer investments to UK investors which qualify for the Enterprise Investment Schemes (SEIS and EIS). It doesn’t matter if your startup is based in France, Germany, Spain, Italy, Estonia, the US – or anywhere! It’s possible.

In this post, we explain how non-UK companies can qualify for SEIS / EIS and become much more attractive to UK investors.

Contents

 

Register as an overseas company

To qualify for SEIS / EIS, your company doesn’t need to be incorporated in the UK, but it does need to register as a having a permanent establishment in the UK.

There’s a full description of how HMRC defines a UK permanent establishment on the gov.uk website – in brief, it means either:

  • the company has a fixed place of business in the UK, through which the company’s business is wholly or partly carried out

or

  • the company has an agent who has authority to enter into contracts on behalf of the company, and regularly does this

Below in this post, we’ll look at what exactly HMRC means by fixed place of business and agent.

As well as meeting one or both of these criteria, you’ll need to register as an overseas company in the UK within one month of establishing the business filling in the OS IN01 form and sending it to Companies House. There are full details on how to do this at the gov.uk website.

 

Troubleshooting the OS IN01 form

The process to register as an overseas company sometimes trips founders up. Here are the most important things to know:

- You must include the fee of £20 with your registration form. This can be a note or a cheque or postal order payable to Companies House.

- Parts 1 to 4 of the form are about the details of the overseas company. Parts 5 to 7 are about the details of the UK establishment.

- Your overseas company’s corporate name can’t be the same as one already on the Companies House register. Check if it’s available here.

You can find a helpful guide to each step in the form in How to complete your OS IN01 on gov.uk.

Does your company have a UK fixed place of business?

A fixed place of business in the UK is defined as any place of work, for example a branch, office, factory, workshop or project site where an essential or substantial part of your business is carried out.

This means the business activities your company carries out in the UK can’t be auxiliary or preparatory. HMRC give some examples of activities which might be considered auxiliary or preparatory:

  • storing or displaying goods or merchandise belonging to the company
  • maintaining stock owned by the company for storage, display, or delivery
  • purchasing goods or merchandise or collecting information for the company
  • maintaining stock owned by the company for the purpose of processing by another person

HMRC deliberately doesn’t give an exhaustive list of auxiliary or preparatory activities – they review every SEIS / EIS application from non-UK companies individually. When you’re completing your application for SEIS / EIS Advance Assurance or SEIS / EIS Compliance, make sure you state the reasons why you believe a substantial part of your business activity is carried out in the UK. You can put this on the application form or in a separate letter.

Zlatina Trifonova

In our experience, HMRC will expect at least some sort of physical presence in the UK. A PO box or virtual office won’t be sufficient. As evidence, HMRC will want to see the lease of the property. If you’re working from a WeWork or co-working space, then your contract for the co-working company will do.

Zlatina Trifonova

SEIS/EIS expert,

SeedLegals

Does your company have a UK agent?

Another way of qualifying for SEIS / EIS as a foreign company is by having an agent working for you in the UK.

A UK agent is defined as a person who can exercise their authority in the UK to enter into contracts on behalf of your company. Merely maintaining an employee in the UK is not enough.

This means the agent must plan to, or already has, repeatedly entered into contracts that bind the company. The contracts must be to do with the substantive business of the company and not related to activities which are auxiliary or preparatory. The definition of auxiliary and preparatory is the same as above.

If you have a UK agent, make sure you explain this clearly in your SEIS / EIS application and submit evidence.

Zlatina Trifonova

If you have one or more of your company directors resident in the UK, then that’s usually sufficient to count as an ‘agent’ in the UK because directors can enter into contracts on behalf of the company. As evidence, HMRC will want to see the employment contract for the director(s).

Zlatina Trifonova

SEIS/EIS expert,

SeedLegals

Maintain your UK establishment for at least three years

To make sure investments in your company stay eligible for SEIS / EIS, your company must maintain your permanent establishment in the UK for three years from the date trading started, or from the date you issued the SEIS / EIS shares.

SEIS/EIS Advance Assurance

Attract UK investors with SEIS and EIS

Prove investments in your non-UK company qualify for SEIS / EIS tax relief. Apply for Advance Assurance with the help of our experts.

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Non-UK parent or holding company: how to to take SEIS / EIS investment

An overseas-registered parent or holding company must itself have a permanent establishment in the UK to qualify for SEIS / EIS – the parent can’t just have a subsidiary resident in the UK.

Investments won’t qualify for SEIS / EIS if they’re taken into the subsidiary because SEIS & EIS investment must be taken into the TopCo.

Non-UK subsidiary with a UK holding or parent company: how to to take SEIS / EIS investment

If you have a UK parent or holding company (also known as a TopCo) and the administrative and management functions of your company are based in the UK, your company is likely to qualify for SEIS/EIS. The business of your subsidiaries doesn’t need to be carried out in the UK.

If you’re taking investment into both your holding or parent company and subsidiary company, for the investment to qualify for SEIS / EIS, it must be taken into the holding company.

You can then use the money to carry out a qualifying trade in a foreign subsidiary, as long as the parent company owns 90% or more of the subsidiary.

 

Talk to an expert

If you’re thinking about getting SEIS / EIS Advance Assurance for a non-UK company, we can help. To talk to one of our experts about the information you’ll need to give in your application, and how to maximise your chances of being given Advance Assurance by HMRC, book a free call.

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