Income Tax act
Taxation Laws Amendment Act (TLAB)
In this article, we briefly discuss the debt reduction provisions of the Income Tax Act and Taxation Laws Amendment Act.
Section 19 and paragraph 12A of the Income Tax Act regulate the situation where a debt is cancelled, waived, forgiven or discharged for no consideration (or for consideration which is less than the amount of the debt). The provisions rely on the definition of “reduction amount”, which is the
amount by which the debt is reduced, less any consideration given by the debtor for the reduction.
Section 19 applies to debts used directly or indirectly to fund expenditure in respect of which a deduction or allowance was granted (i.e. debts incurred for purposes of funding expenditure on revenue account), while paragraph 12A applies to debts used to fund allowance assets or expenditure in respect of which no deduction or allowance was granted (i.e. debts incurred for purposes of funding expenditure on capital account).
Section 19 applies where:
a. a debt that is owed by a person is reduced;
b. the amount of the debt was used to fund deductible expenditure, acquire allowance assets or trading stock; and
c. there is a difference between the amount advanced under the loan and the amount repaid in terms of the loan (“reduction amount”).
In order to avoid double taxation, the provisions of section 19 will not apply in the following instances:
- Where the reduction of debt constitutes a donation (as defined in section 55(1)) or a deemed donation in terms of section 58. In this instance the donor may be liable for donations tax at a rate of 20%.
- Where debt is owed to a deceased estate of which the debtor is an heir or legatee. If the deceased estate reduces the debt and the reduction forms part of the estate’s property, such amount may be subject to Estate Duty.
- Where debt owed by an employee, is discharged or reduced by an employer and a taxable fringe benefit arises. The cash equivalent, calculated in terms of Seventh Schedule to the Act, will be included in the employee’s taxable income.
Section 19(6) determines that the recoupment included in the taxable income of the debtor during the year of assessment in which the debt reduction took place, is limited to the sum of all capital allowances claimed on the asset less any decline in the base cost of the asset as a result of the debt reduction.
Section 19(7) regulates the situation where capital allowances are claimed on an asset that relates to a debt reduction transaction. Future allowances and deductions claimed by the debtor in respect of this asset may not exceed the following: The total expenditure incurred to acquire the asset less the amount of debt reduction less total deductions previously claimed by the debtor in respect of the relevant asset.
Paragraph 12A of the Eighth Schedule represents the capital gains tax equivalent of section 19. It essentially applies where the debtor applied the loan to acquire an asset which is held on capital account and there is a “reduction amount”.
The provisions of paragraph 12A of the Eight Schedule to the Act need to be considered. After it has been determined that the debt relates to the acquisition of an allowance asset, it must be determined as to whether, or not, the allowance asset is still in the debtor’s possession on the date of debt reduction.
In the instance where the asset is still owned by the debtor, the base cost of the asset will be reduced with the amount of debt reduction. This will result in a higher capital gain with future disposal of the asset. Since the base cost of an asset can only be reduced to a minimum of nil, the amount of debt reduction that exceeds the base cost of such asset will be taxed under section 19.
In contrast to the above, an amount of debt reduction will be subject to section 19 in full if it relates to an asset that is no longer in the taxpayer’s possession.
Capital Gains Tax implications
In respect of the borrower, paragraph 12A(3)(b) provides that, in relation to an asset held at the time of the debt reduction, the base cost of the relevant asset held by the borrower must be reduced by the Reduction Amount. Where the Reduction Amount exceeds the base cost, such excess amount must be applied to reduce any assessed capital loss of the borrower for the year of assessment in which the reduction takes place.
Paragraph 12A(6)(d) provides that the provisions of paragraph 12A do not apply to any debt owed by a person to another person where that person and that other person are companies that form part of the same group of companies, unless they form part of any transaction, operation or scheme entered into to avoid any tax imposed by the Act.
The waiver of a loan by a lender should constitute a disposal of an asset in the hands of the lender. It should then be determined whether a capital loss arises from such disposal.
Paragraph 56(1) provides that where a creditor disposes of a debt owed by a debtor who is a connected person in relation to the creditor, that creditor must disregard any capital loss determined in respect of the disposal.
Paragraph 56(1) does not apply to the extent that the amount of that debt so disposed of represents an amount which is applied to reduce the expenditure in respect of an asset of the debtor or any assessed capital loss of the debtor in terms of paragraph 12A, or an amount that must be or was included in the gross income of the debtor.
The capital gains tax provisions of paragraph 12A should also not apply if the loans are waived between group entities.
A donation is defined as any gratuitous disposal of property including the gratuitous waiver or renunciation of a right. A waiver of a loan may constitute a donation.
However, section 56(1)(r) provides that no donations tax shall be payable in respect of a donation by a company to another company that is a resident and is a member of the same group of companies as the company making the donations.
Same group of companies exclusion
In terms of this exclusion, the debt reduction provisions do not apply to a debt benefit in respect of any debt owed by a person to another person where the person that owes the debt is a company that:
- owes the amount to a company (ie, creditor company) that forms part of the same group of companies (defined to only include South African resident companies) as that company (i.e. debtor company); and
- reduces or settles the debt, directly or indirectly, by means of shares issued by that debtor company.
This exclusion does not apply in respect of any debt that was incurred or assumed by that company (the debtor company) in order to settle, take over, refinance or renew, directly or indirectly, any debt incurred by another company which:
a. did not form part of that same group of companies at the time that that other company incurred that debt or
b. does not form part of the same group of companies at the time that that company (the debtor company) reduces or settles that debt by means of shares issued by it.
The revised debt reduction provisions now apply under significantly wider circumstances than before. Unless any specific exclusions apply, where changes to the terms of a debt or the settlement of a debt by way of set off involving the issue of shares are envisaged, the application of the funds and whether a debt benefit would arise should be carefully considered. Essentially, whether a debt benefit arises is determined with reference to the difference between the face value of the debt prior to the concession or compromise and the market value of the claim or shares acquired, and any difference may give rise to adverse tax consequences for the debtor, unless the exclusions apply.
For mining companies, new debt reduction rules for mining capital expenditure were introduced in a new subsection (7EA) in section 36 of the Act.
Author Craig Tonkin