Technical helpsheet issued to help ICAEW members understand key legal and accounting aspects of the purchase of own shares in a private limited company.
This helpsheet has been issued by ICAEW’s Technical Advisory Service to help ICAEW members understand key legal and accounting aspects of the purchase of own shares in a private limited company.
Members may also wish to refer to the following related helpsheet and guidance:
This helpsheet covers ‘off market’ purchases under the share buy-back regime contained in Part 18 of the Companies Act 2006.
A private limited company may repurchase its own shares out of capital, distributable reserves, or the proceeds of a fresh issue of shares made for the purpose of financing the repurchase. Additionally, in 2015 the government amended the law around share buy-backs to permit private companies to make so-called ‘de minimis’ repurchases out of capital without having to identify available distributable reserves.
In summary a private company can buy back shares:
- out of capital in accordance with Part 18 Chapter 5, Companies Act 2006; or
- out of distributable profits (or the proceeds of a fresh issue of shares made for the purpose of financing the purchase) in accordance with Part 18 Chapter 4, Companies Act 2006; or
- under section 692(1ZA), Part 18 Chapter 4, Companies Act 2006, out of capital, otherwise than in accordance with Chapter 5, up to an aggregate purchase price in a financial year of the lower of:
(i) £15,000; or
(ii) the nominal value of 5% of its fully paid share capital as at the beginning of the financial year.
1. Out of capital in accordance with part 18 chapter 5
Companies may purchase their own shares out of capital but this is a complex process requiring a special resolution, a directors’ declaration of solvency supported by an auditor’s report to be available for inspection and a public notice of the proposed payment (Companies Act 2006 sections 709-723).
Due to this complexity and the availability of other, simpler routes (such as performing a capital reduction – see our separate helpsheet Private company reduction of share capital), this procedure is not used frequently and is therefore not covered in detail in this helpsheet.
Where this route is being considered, companies would usually require legal advice with regard to the proposed transaction.
2. Out of distributable profit or the proceeds of a fresh share issue in accordance with part 18 chapter 4
This is the most common route for repurchasing shares,but does require a company to have sufficient distributable reserves in order to make the purchase (unless it is funded from the proceeds of a fresh share issue). Members should refer to TECH 02/17 BL Guidance on realised and distributable profits under the Companies Act 2006 for further guidance on distributable profits.
The basic procedure is set out in Chapter 4 of the Companies Act 2006 and is summarised as follows:
- The company’s articles must not prohibit the purchase.
- The purchase cannot be paid for over a period of time or by instalments (section 691(2)), except for the purposes of or pursuant to an employee share scheme (section 691(3) – see Share repurchase for the purpose of employee share schemes).
- The terms of the share purchase contract must be authorised by ordinary resolution before the contract is entered into (section 694). Members holding shares to be purchased are not eligible to vote.
- Either the contract or the memorandum setting out its terms must be available for 15 days prior to the ordinary resolution being passed at a meeting, or in the case of a written resolution the contract or memorandum must be sent out to every eligible member at or before the time the proposed resolution is sent to him.
- Where a company has more than one class of shares, class consent may be required from shareholders that have priority rights before the shares can be purchased.
- The shares must be fully paid.
- The shares must be cancelled immediately on acquisition unless holding the shares as treasury shares.
- Within 28 days of the shares being delivered to the company a return must be delivered to the Registrar of Companies (section 707) and, before it is filed, Form SH03 must be sent to HMRC for stamping (HMRC has published a helpsheet on Company purchase of own shares).
- The contract must be kept for ten years.
- If the correct procedure is not followed then the purchase is void and an offence is committed by the company and every officer in default. An officer in default is liable to a prison term of up to two years or an unlimited fine (section 658).
The double entry for the purchase of shares out of distributable reserves (assuming the shares are cancelled) is as follows:
Dr Distributable reserves (e.g. P&L Reserve) - with the amount paid
Cr Cash – with the amount paid
Dr Share capital – with the nominal value of the shares purchased
Cr Capital redemption reserve – with the nominal value of shares purchased
Under section 682 (1ZA), de minimis rules in accordance with part 18 chapter 4
This ‘de minimis’ option was introduced in 2015 to enable companies to make small share repurchases without the need to identify distributable reserves.
The same basic procedure above applies for share repurchases made under the ‘de minimis’ rules but there are three key differences to note:
- The company’s articles must explicitly authorise the purchase.
- Under this method shares may only be bought back in any given financial year up to the lower of:
(i) a maximum purchase price of £15,000; or
(ii) the nominal value of 5% of the company’s fully paid share capital as at the beginning of the financial year.
- Shares purchased under section 692(1ZA) may not be held as treasury shares, i.e. they must be cancelled once repurchased.
Where the purchase price is less than the nominal value (e.g. nominal value £100, purchase price £70), then the difference goes to a capital redemption reserve:
Dr Share capital 100
Cr Cash 70
Cr Capital redemption reserve 30
Where the purchase price is greater than the nominal value (e.g. nominal value £100, purchase price £120), then the difference, less any proceeds of a fresh issue, is charged to the capital redemption reserve, share premium, share capital or revaluation reserve:
Dr Share capital 100
Cr Cash 120
Dr Capital redemption reserve/share premium/share capital/revaluation reserve 20
Reduction of share capital
A private company may also reduce its share capital under the Companies Act 2006 by a special resolution supported by a solvency statement (sections 641-644). The helpsheet Private company reduction of share capital discusses this approach. Any company may also reduce its share capital by a special resolution confirmed by the court (sections 645-651).
Share repurpose for the purchase of employee share schemes
Where a buyback is for the purpose of an employees’ share scheme, there are several minor differences under the Companies Act 2006 from the process discussed above, as follows:
- The purchase needs to be authorised under s693A which requires a general or limited authority to be granted in advance of the purchase;
- The shares are permitted to be paid for after purchase or in instalments (section 691(3)); and
- Where the purchase is made out of capital there is a simplified process set out in sections 720A-720B which requires a special resolution supported by a solvency statement.
If in doubt seek advice
ICAEW members, affiliates, ICAEW students and staff in eligible firms with member firm access can discuss their specific situation with the Technical Advisory Service on +44 (0)1908 248 250 or via webchat.
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ICAEW cannot accept responsibility for any person acting or refraining to act as a result of any material contained in this helpsheet. This helpsheet is designed to alert members to an important issue of general application. It is not intended to be a definitive statement covering all aspects but is a brief comment on a specific point.
ICAEW members have permission to use and reproduce this helpsheet on the following conditions:
- This permission is strictly limited to ICAEW members only who are using the helpsheet for guidance only.
- The helpsheet is to be reproduced for personal, non-commercial use only and is not for re-distribution.
For further details members are invited to telephone the Technical Advisory Service T +44 (0)1908 248250. The Technical Advisory Service comprises the technical enquiries, ethics advice, anti-money laundering and fraud helplines. For further details visit icaew.com/tas.
- 01 Sep 2014 (12: 00 AM BST)
- First published.
- 23 Sep 2021 (12: 00 AM BST)
- Changelog created, helpsheet converted to new template
- 17 Mar 2021 (01: 31 PM GMT)
- Slight change of wording to make it clearer for readers