HMRC update ERS guidance for Vermilion

HMRC have updated guidance in their Employment Related Securities Manual to take into account the Supreme Court’s decision in Vermilion [2023] UKSC 37 on the application of the deeming provision in the ERS rules. In that case the SC held that the deeming provision in ITEPA 2003 s 471(3) created a ‘bright line’ rule with no general purpose-based let out.

HMRC’s revised guidance (at ERSM20215) states: ‘If the right or opportunity to acquire a securities option is made available by a person’s employer or a person connected with a person’s employer then it is an ERS option regardless of the reason for doing so.

‘Where a company makes a rights issue or issues warrants to its shareholders and a shareholder is an employee of the company this is also covered by the deeming provision and reported in accordance with the ERS reporting obligations.’

HMRC’s guidance also states:...