ATO Interpretative Decision
ATO ID 2003/561
Income Tax
Commercial debt forgiveness: share subscription funds used by associate of the debtor to discharge pre existing debtFOI status: may be released
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This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Where a debt is taken to be forgiven under subsection 245-35(5) of Schedule 2C to the Income Tax Assessment Act 1936 (ITAA 1936) due to a creditor subscribing for shares in the debtor is the debtor deemed to have paid market value consideration in respect of the forgiveness?
Decision
Yes. Where a forgiveness is taken to have occurred under subsection 245-35(5) of Schedule 2C to the ITAA 1936, the consideration in respect of a forgiveness is calculated under subsection 245-65(4) of Schedule 2C by reference to the market value of the shares subscribed for, as at immediately after their issue.
Facts
Due to Creditor subscribing for shares in Debtor after 27 June 1996, a commercial debt owed by Debtor to Creditor was taken to be forgiven under subsection 245-35(5) of Schedule 2C to the ITAA 1936.
The Creditor paid $9 000 for the subscribed shares, which had a market value of $10 000 as at the time the subscription moneys were paid.
Immediately after the issue of the shares their market value totalled $11 000.
Half the $9 000 paid by the Creditor for the subscription of shares was applied towards discharge of the debt owed by Debtor to Creditor.
Reasons for Decision
Where a commercial debt is taken to be forgiven under subsection 245-35(5) of Schedule 2C to the ITAA 1936 the consideration in respect of the forgiveness is calculated under subsection 245-65(4) of Schedule 2C to the ITAA 1936. Subsection 245-65(4) provides:
'If a debt is forgiven by subscribing for shares in a company as mentioned in subsection 245-35(5), the
consideration
in respect of the forgiveness of the debt is the amount worked out using the formula:
(Amount applied x Market value of shares subscribed for) / Amount subscribed
where:
amount applied
means the amount applied by the company as mentioned in paragraph 245-35(5)(b).
amount subscribed
means the amount subscribed as mentioned in paragraph 245-35(5)(a).
market value of shares subscribed for
means the market value, of all the shares in the company that were subscribed for as mentioned in paragraph 245-35(5)(a), immediately after those shares were issued.'
Accordingly the
consideration
in respect of the forgiveness is $5 500 as the relevant market value of shares for the purposes of subsection 245-65(4) of the ITAA 1936 is referable to the time immediately after the issue of the relevant shares.
That is:
(1/2 x $9 000 x $11 000) / $9 000
Year of income: Year ended 30 June 2003
Legislative References:
Income Tax Assessment Act 1936
Schedule 2C, subsection 245-35(5)
Schedule 2C, subsection 245-65(4)
Keywords
Commercial debt
Commercial debt forgiveness
Debt forgiveness
Debt related transactions
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 6 March 2003 | Original statement |
| 21 November 2008 | Archived |