EMI Incorrectly Set Up

The firm I work for set up an EMI scheme two years for all staff. A sale of the business is now imminent - however, it has transpired that the EMI should have been set up under the main holding company, and not the subsidiary. The suggestion is that the previous EMI scheme needs to be ripped up and new shares issues, which would not benefit from the tax efficiency of an EMI. Noting that the firm were il-advised and the EMI was only set up incorrectly due to an administrative error, is there any precendent for HMRC taking a 'sympathetic view' here and recognising the status of the original EMI?

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