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Income Tax Consequences Of The New Business Rescue Regime For Companies

Sunday, 08 July 2012   (0 Comments)
Posted by: Author: Lee-Ann Steenkamp
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Income Tax Consequences of The New Business Rescue Regime For Companies

"This article is the sixth instalment in the series which investigates the interplay of the new Companies Act 71 of 2008 (COA) and the Income Tax Act 58 of 1962 (ITA).1 The COA replaces the old regime of judicial administration of failing companies with a modernised version, referred to as the ‘business rescue regime’.”

The Department of Trade and Industry’s (dti) Explanatory Guide on the Companies Act No 71 of 2008 notes that this regime is largely self administered by the company, under independent supervision within constraints set out in the Act, and subject to court intervention at anytime on application by any of the stakeholders. Generally, a failing company is financially distressed if it appears reasonably unlikely that the company will be able to pay all of its debts when they become due and payable or if the company will be insolvent within the ensuing six months. Pursuant to the approval of placing a company under business rescue, a business rescue practitioner must be appointed.The practitioner is tasked with a wide variety of duties, including the preparation and implementation of a business rescue plan.

The business rescue plan

The business rescue plan must be in accordance with Part D of Chapter 6 of the COA. It may provide for the discharge of debts and claims relating to the company. During the business rescue proceedings, any guarantee or surety given by the company is enforceable only with leave of the court and any claim against the company is suspended for the duration of the business rescue proceedings.This implies that any claim to payment for a loan or surety by the company will be suspended,thereby forgiving the debt by the said company until the conclusion of the proceedings. Furthermore, in terms of s154(2) of the COA, once a business rescue plan has been approved, it may provide that a creditor is barred from enforcing any debt owed by the company under business rescue immediately before the beginning of the business rescue process, save to the extent provided for in the plan. In other words, for the duration of the proceedings and even thereafter, the company is discharged of any claims and debts owing to its creditors.One notable exception is that of s133(1)(f) of the COA, whereby the moratorium on legal proceedings against the company is not applicable in the case of proceedings by a regulatory authority in the execution of its duties after written notification to the business rescue practitioner.This could potentially be cause for concern, as this exception seems to infer that there will be no moratorium on SARS collecting taxes owed to it.

Possible CGT consequences

The suspension of the debt or surety ship does not in itself give rise to any negative tax consequences since it is not a complete waiver of a debt.The reduction or extinguishing of a debt during the proceedings is essentially a discharge from a debt owed to acreditor. This could lead to CGT in terms of par 12(5) of the Eighth Schedule to the ITA.

The discharge of the debt could therefore result in a capital gain in the hands of the company under business rescue proceedings.Once a creditor has discharged from debt a company under business rescue, it cannot upon the rehabilitation of that company claim the discharged debt.2 Similarly, the company under business rescue cannot upon rehabilitation reclaim the CGT paid in terms of par 12(5).

A noteworthy exception is if the creditor and the company under business rescue form part of the same group of companies, as defined in s 41 of the ITA. Unless the waiving or discharge of the loan was part of a tax avoidance scheme, it will not attract CGT.3

Although placing a company under business rescue does not in itself appear to give rise to income tax consequences, any subsequent discharge of debt could lead to negative CGT consequences. We might question whether it does not seem a rather self-defeating object to impose CGT on a financially distressed company while attempting to rehabilitate the company.

The next and final instalment will highlight the tax implications of the conversion of par value shares to non-par value shares.

1.The first five articles appeared in previous editions of TaxTalk.The series commenced in the September/October 2011 edition.Footnote references to the relevant sections in the COA were omitted in this article – please e-mail the author should your equire these.

2.As pointed out by N Napier & R Salani "Tax Implications of the New Business Rescue Regime” (27-05-2011) Cliffe Dekke rHofmeyr’s Tax Alert <> (accessed 29-06-2011).

3.Per exclusion (bb) of par 12(5) of the Eighth Schedule of the ITA

Source: By Lee-Ann Steenkamp (TaxTALK)



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