EU state aid approval for the tax reliefs associated with EMI will not be renewed in time for 7 April 2018, according to an HMRC bulletin published on 4 April 2018.
The tax reliefs which EMI options benefit from are technically a form of state aid and therefore require approval from the EU Commission. The current approval expires at midnight on 6 April 2018 but HMRC has reported that the new approval has not yet been received from the Commission. HMRC have said that they are working hard to obtain the new approval as soon as possible.
EMI options granted on or before 6 April 2018 will still benefit from EMI tax treatment.
It is uncertain whether options granted on and from 7 April 2018 until the date on which the EU Commission approval is received will benefit from the tax reliefs which apply to EMI options. HMRC have stated there is a risk that options granted in this time frame may be classed as non-tax-approved options and, if that is the case, unexpected tax liabilities could be incurred by both employers and employees as a result.
In our view, it could be the case that this issue will resolve itself but if you are in the process of granting EMI options in the near future (but not in a position where you could sensibly complete before 7 April 2018), you should consider delaying until such time as state aid approval is granted, and the picture becomes more certain.