The global economy is still recovering from the effects of the sub-prime crisis. The economic downturn has created international tax policies that seem to encourage debt funding. Some commentators are of the view that debt and equity should have a uniform tax treatment. South Africa has not escaped the aftermath of the economic meltdown and had three credit downgrades since the second half of 2009. The first objective of this treatise was to determine whether loan funding still has a role to play in a SME environment. This was considered in the context of interest-free or low-interest rate loans advanced by companies to shareholders or other connected persons and interest-bearing loans due by companies that in substance clearly have equity features. The primary enquiry pertaining to debit loans is whether the debt arose by virtue of any share held in the company. It is submitted that a causal connection is required between any share in that company and the advance made. Where a company parts with funds for no quid pro quo a deemed dividend in specie is triggered. Conversely, where a loan was made on commercial grounds the company will not be in breach, even if the loan is interest-free. A loan that lacks a reasonable redemption period is more akin to equity and to this extent a deemed dividend will be triggered where a loan owing by a company to a shareholder or other connected person is not redeemable within 30 years. There is ambiguity with regards to the inception of the 30-year period for pre-existing loan agreements. Taking the contra fiscum rule into account, it is submitted that the 30-year period should only commence from the effective date due to the impracticalities involved and because the concept of an ‘instrument’ did not previously exist. It is submitted that shareholder and other connected person loans are not by default equity, to the extent that the transaction is on commercial grounds and in substance a loan. It is further submitted that loan funding still has a role to play in a SME environment and that South Africa has no need for uniform tax rules pertaining to debt and equity, due to the anti-avoidance provisions highlighted above. The poor state of the local economy prompted Treasury to introduce new debt relief rules to assist distressed debtors. The second objective of this treatise was to analyse whether the new rules will provide tangible relief to distressed debtors as this was one of the short comings of the previous system. It is submitted that the new ordering rules delay the incurrence of an immediate tax as trading stock held and not disposed of, the base cost of an asset or the balance of an assessed capital loss is first reduced compared to the old rules where it instantly triggered a recoupment or a deemed disposal for CGT purposes. Tangible relief is provided to distressed debtors as a tax debt reduced has no normal tax consequences. This provides an opportunity for companies under business rescue because SARS rank on par with concurrent creditors. As a result, the tax debt reduced is likely to be higher under business rescue than liquidation.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:29459 |
| Date | January 2017 |
| Creators | Van Zyl, Gideon Pieter |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Business and Economics Sciences |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, MCom |
| Format | xii, 122 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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