Income Tax Act
Schedule 7 of the Income Tax Act
Section 24J of the Income Tax Act
Section 19 of the Income Tax Act
Section 7C of the Income Tax Act
Tax Administration Act
Loans between companies and their shareholders, or other group companies, are a common method of providing finance in the South African corporate environment. Loans of this nature could result in tax implications in the hands of the lender or the recipient.
Loans or advances from a company to a shareholder (or any person connected to the shareholders) will automatically be deemed to be dividends in certain circumstances.
Should a company make a loan to its shareholder or another entity controlled by its shareholder, such loan could have deemed dividend consequences, unless interest is charged at a rate at least equal to the SARS official rate.
The amount of the deemed dividend is calculated by determining the difference between actual interest charged on the loan and interest charged at the SARS prescribed rate. To avoid the deemed dividend, this loan account needs to be repaid in full by the end of February (or interest needs to be charged at the SARS prescribed rate).
In certain circumstances it could be beneficial to not repay the loan account and accept that a deemed dividend is payable. This is because an interest-free loan from your company is probably the cheapest form of finance you will be able to find, assuming that the company is able to facilitate the loan.
The current deemed dividend provision applies where a debt arises by virtue of a share held in the company and where the following conditions are present:
the debtor is a person other than a company;
the debtor is a South African resident and the debtor is either a connected person in relation to the company, or a connected person in relation to that person.
A “connected person” in relation to a company means any company that forms part of the same group of companies (where at least 70% of the equity shares in a controlled group company are held by the controlling group company), or any person, other than a company, who individually or jointly with any connected person holds, directly or indirectly, at least 20% of the company’s equity shares or voting rights.
If all of these requirements are met, the company is deemed to have paid a dividend which is deemed to be an amount equal to the greater of the “market related interest” in respect of the debt, less the amount of interest payable to that company in respect of the relevant year of assessment.
The amount of the dividend is determined by applying an interest rate to the debit balance on the loan during the year. For purposes of determining the deemed dividend, the term “market related interest” is the difference between the “official rate of interest” that applies for fringe benefits tax purposes, and as defined in paragraph 1 of the Seventh Schedule (determined by the Minister of Finance as and when updates are needed), and the actual interest rate charged on the loan. Only the interest effectively forgone, and not the capital amount of the loan, is deemed to be a dividend. If the loan bears interest at an acceptable rate, there would be no deemed dividend.
The dividend is deemed to be paid by the company on the last day of the year of assessment, and the company is required to pay the resulting dividends tax by the end of the month following its year-end and the company (as opposed to the shareholder) is liable for the tax.
In order for a shareholder loan to constitute a deemed dividend, the debt has to arise by virtue of a share held in the company.
Section 7C of the Income Tax Act originally came into effect on 1 March 2017 but on 19 July 2017 the provisions of Section 7C were extended to include a loan made by an individual to a company in which such a Trust holds at least 20% of the equity shares or is able to exercise 20% of the voting rights.
In the past it was common practice for a trust to obtain assets by way of an interest-free or low interest loan from a natural person. The objective of section 7C is to tax qualifying loans issued by related parties (founder, beneficiaries etc.) to trusts, if these loans attract interest at a rate lower than the official rate of interest set by government.
Section 7C is an anti-avoidance provision designed to address a situation where a loan is made to a qualifying borrower interest-free or at a rate lower than the official rate of interest as defined in paragraph 1 of the Seventh Schedule to the Act.
What are the tax implications of section 7C?
An amount, calculated as the difference between the interest charged on the loan (if any) and the interest that would have been incurred had the official rate of interest been charged on the loan, will be treated as a donation. This donation is deemed to be made to the trust by that natural person on the last day of his/her year of assessment. In relation to section 60 of the Act, the donations tax must be paid by 31 March every year. This is an annual event and the natural person is able to utilise his/her annual donations tax exemption against this amount (currently R100,000 per annum). The interest forgone by the qualifying lender of the loan will be treated as an ongoing and annual donation made to the trust on the last day of the trust’s year of assessment.
It is important to note that the legislation is applicable to loans that are in existence on 1 March 2017 and not only new loans entered into after this date.
When is section 7C applicable?
In order for section 7C to apply, the following requirements need to be met:
There must be a loan, advance or credit;
That loan, advance or credit must be provided by a natural person, or at the instance of that person by a company which is connected to that person.
That loan must have been directly or indirectly provided to:
A trust in relation to which that natural person/company is a connected person;
A trust in relation to which a connected person that is a connected person to the natural person/company (who provided the loan) is a connected person;
A company if at least 20% of the equity shares/voting rights is held by a trust as explained above; or
A company if at least 20% of the equity shares/voting rights is held by a beneficiary of a trust as explained above; and
No interest (or interest below the official rate of interest) is charged on the loan.
Section 7C will apply as long as the loan remains in place between the trust and the natural person.
The donation is accounted for by the natural person by way of completing an IT144 from (declaration by donor / donee).
Lastly, the donation will be regarded as having been made to the trust by the natural person on the day of the year of assessment and donation tax will be payable by the month, following the month during which the donation takes effect. Thus, the donations tax will be payable by 31 March. SARS does levy interest on late payments.
There are various special exemptions from this input tax. An important one is section 7C(5)(d) which excludes a connected loan account used to fund a primary residence. These tax exemptions must be determined correctly in the trust deed.
Many trusts in the past have not kept financial statements up to date, some have not even registered for taxes. This means that the trustees may become personally liable to SARS for late filing or other non-compliance penalties and interest.
Writing off of loans
Within many corporate structures there are a multitude of inter-company loan accounts. These loan accounts often arise either through funding being provided by one company to another or in circumstances where, for example, a company provides services or sells goods to another company and the consideration remains outstanding on loan account.
Often such loan accounts are written off, particularly in circumstances where the borrower is not able to repay the loan or, in a group context where the group wishes to clean up its inter-group transactions.
Debt is also written off in many other circumstances such as when it is not able to be repaid by the borrower.
On the basis that the loans are interest-bearing, the provisions of section 24J of the Income Tax Act must be considered.
- A gain on redemption of the loan will arise for the borrower upon the waiver of the loan. This gain will be deemed to accrue to the borrower for tax purposes in terms of section 24J.
- Conversely, a loss on redemption of the loan will arise for the lender upon the waiver of the loan. This will be deemed to have been incurred by the lender for tax purposes in terms of section 24J.
Section 24J(4) only deems such gain or loss to accrue to, or be incurred by, the taxpayer. It must still be determined whether such gain or loss is to be of a capital or a revenue nature.
Generally, unless the taxpayer is a money-lender, an adjusted gain or loss should be capital in nature in which case section 24J should not apply. If the gain or loss is revenue in nature then the lender may obtain a deduction in relation to such loss. Conversely, a gain which is revenue in nature and which has not already been taken into account in terms of section 19 of the Act will be included in the income of the lender.
Finally, section 24J(12) states that section 24J does not apply in respect of a loan, inter-alia, which is repayable on demand. Therefore, if the loan is repayable on demand then no gain or loss arises in terms of the provisions of section 24J of the Act.