The Value-Added Tax Treatment of Debt Collection

VALUE-ADDED TAX ACT 89 OF 1991
DRAFT INTERPRETATION NOTE – 09 SEPTEMBER 2022 for public comment

SARS recently published this “Value-Added Tax treatment of debt collection” draft interpretation note for public comment by 07 October 2022.

“DCA” means the Debt Collectors Act 114 of 1998
“NCA” means the National Credit Act 34 of 2005

This Note provides clarity on the VAT treatment of debt collection activities, whether undertaken by credit providers, in-house, or outsourced to external debt collectors. In particular, the Note examines the VAT treatment of the prescribed amounts recovered by the debt collector from the debtor under the DCA. This Note does not address debt collection activities outsourced to attorneys.

Background:

Credit providers incur substantial debt collection costs when debtors default on payment. Typically, the debtors are contractually liable under the credit agreement governing their relationship with the credit providers for the payment of the debt collection costs. The NCA regulates the legal relationship between the credit provider and the debtor.

The debt collection process may either be undertaken in-house by credit providers or outsourced to debt collectors for an agreed remuneration. The latter arrangement is formalized under a service level agreement (SLA) between the credit provider and the debt collector. The debt collector’s remuneration will vary depending on the contractual terms agreed upon between the parties. Generally, the agreed remuneration includes a commission paid by the credit provider, calculated as a percentage of the amount collected from the debtor, as well as the recovery of the prescribed amounts under the DCA. The debt collector, therefore, acts on the mandate of the credit provider to collect the outstanding amounts owed by the debtor to the credit provider.

Debt collectors are regulated by, amongst others, the DCA. The recovery of the prescribed amounts is stipulated in the DCA. Examples of these prescribed amounts include fees for writing and sending letters, making telephone calls, and sending e-mails and short message services (SMSs). In practice, the prescribed amounts recovered from the debtor are usually retained by the debt collector, although the debt collector is normally obliged to first collect the actual debt from the debtor before proceeding to collect the prescribed amounts.

The issue at hand is whether the remuneration referred to under the SLA, including the commission and the prescribed amounts recovered by the debt collector from the debtor under the DCA, constitutes “consideration”, as defined in section 1(1) of the VAT Act, for the supply of debt collection services. Should these amounts be regarded as consideration for such supply, the question that follows is whether the credit provider or the debtor, being a vendor, is entitled to deduct the VAT paid on these amounts as input tax.

Application of the law

Output tax

Generally, vendors are required to charge VAT at the standard rate on all supplies of goods or services in South Africa, subject to certain exemptions and exceptions.

Supply of debt collection services

The supply of debt collection services by a debt collector to a credit provider is subject to VAT at the standard rate under section 7(1)(a) unless an exemption or exception applies to the supply. Whilst it may be clear contractually that the commission paid by the credit provider to the debt collector is in respect of the supply of debt collection services, a question arises as to whether the recovery of the prescribed amounts is also in respect of the supply of debt collection services to the credit provider.

The consideration for a supply is represented by the value plus the VAT charged. The term “consideration” in its simplest form means anything that is received in return for the supply of goods or services. There must therefore be a causal link between the payment and the supply for the payment to constitute consideration. Consideration can be received from a third party on behalf of the recipient or beneficiary.

The consideration for the supply of debt collection services will be equal to the amount that is payable for such supply. Each of the common elements of the agreed remuneration catered for under the SLA between the credit provider and debt collector is briefly analyzed below.

Commission

The commission is generally calculated as a percentage of the amount actually collected from the debtor by the debt collector. The commission paid by the credit provider to the debt collector has a sufficient nexus to the debt collection services performed by the debt collector under the SLA. The commission deducted from the amounts collected, before being paid over to the credit provider, is regarded as payment of the consideration by the credit provider for the debt collection service. As a result, the commission paid by the credit provider in regard to the supply of debt collection services is generally subject to VAT at the standard rate.

Recovery of the prescribed amounts under the Debt Collectors Act

In determining the full consideration for the debt collection services, a question arises as to whether the prescribed amounts recovered by a debt collector from a debtor under the DCA also constitute “consideration” for the debt collection services supplied by the debt collector to the credit provider.

Recovery of debt collection costs by the credit provider

The recovery of debt collection costs by the credit provider (which costs are collected by the debt collector on behalf of the credit provider) does not constitute payment for anything done or to be done (that is, the supply of services) by the credit provider to, or on behalf of, the defaulting debtor. These costs are incurred in the course of collecting debt that is already due to the credit provider as opposed to the credit provider making a separate supply for consideration to another person. The recovery of the costs concerned can therefore not be regarded as consideration received by the credit provider for any supply that it makes to the defaulting debtor.

The recovery of debt collection costs of the credit provider from the debtor is made possible by the terms of the credit agreement between the parties which it provides that in the event of default, the debtor is held liable for these costs.

No output tax should be levied or accounted for on the recovery of debt collection costs by the credit provider, on the basis that such recovery does not constitute consideration for any supply made by the credit provider.

Input tax

Generally, the VAT charged by a vendor to another vendor on any goods or services acquired for taxable purposes will qualify as input tax in the hands of the recipient.

Input tax may only be deducted to the extent that the goods or services are acquired in the course or furtherance of conducting an enterprise. No VAT can be deducted as input tax on expenses incurred wholly for making exempt supplies or other non-taxable purposes.

Debt collection costs incurred by the credit provider

Outsourced debt collection

In the case of outsourced debt collection, the debt collection services are acquired by the credit provider to collect the debt. The debt arises from the provision of credit by the credit provider which is either a financier or a supplier that funds the supply of goods and services. In the latter case, the provision of funding is a separate and distinct activity from the original supply of goods or services.

In both cases, however, the debt amount consists of the outstanding capital, interest, and fees. Since the debt collection services relate in their entirety to the collection of the debt, it is regarded as not being acquired for purposes of consumption, use, or supply in the course of making taxable supplies. As such, credit providers cannot deduct the VAT on debt collection services as input tax.

In-house debt collection

The debt collection that is undertaken in-house by the credit provider to collect the debt (being the outstanding capital, interest, and fees), also relates in its entirety to the collection of the debt that is not for purposes of consumption, use or supply in the course of making taxable supplies. Hence, the credit providers likewise cannot deduct the VAT on in-house debt collection costs as input tax.

Expenses relating to debt collection services supplied by the debt collector

The supply of debt collection services by the debt collector to the credit provider is a taxable supply. As such, any VAT incurred on goods or services acquired for the purposes of supplying debt collection services will qualify as input tax. The debt collector is therefore entitled to deduct VAT incurred on expenses in respect of the debt collection service as input tax.

Conclusion

The conclusions may be summarised as follows:

• The supply of debt collection services by the debt collector to the credit provider is taxable at the standard rate, therefore, the commission paid for such services is subject to VAT at 15%.

• In the event that the agreed remuneration for debt collection services includes the recovery of the prescribed amounts under the DCA, such amounts retained by the debt collector are regarded as also being for the taxable supply of debt collection services. Accordingly, the prescribed amounts received for these services are also subject to VAT at 15%.

• Debt collection costs incurred by the creditor and recovered by the debt collector on behalf of the credit provider are not regarded as consideration received by the credit provider for any supply that it makes to the defaulting debtor. Since the recovery of such costs by the credit provider is not for any supply made, VAT is not required to be levied by the credit provider.

• The costs of outsourced debt collection services (that is, the commission paid by the credit provider and the prescribed amounts under the DCA retained by the debt collector) relate in its entirety to the collection of the debt that is not for purposes of consumption, use or supply in the course of making taxable supplies. Therefore, the credit provider is not entitled to deduct the VAT on the outsourced debt collection service as input tax.

• The costs of in-house debt collection also relate in its entirety to the collection of the debt that is not acquired for purposes of consumption, use, or supply in the course of making taxable supplies. Thus, no input tax may be deducted by the credit provider in respect of acquisitions relating to such costs.

• The debt collector on the other hand is entitled to deduct the VAT incurred on their own goods or services acquired as input tax, to the extent that they relate to the taxable supply of debt collection services.

• The debtor does not acquire debt collection services and as such is not entitled to deduct any VAT relating to the prescribed amounts or any other debt collection costs paid.

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