ATO Interpretative Decision
ATO ID 2003/539 (Withdrawn)
Income Tax
Commercial Debt Forgiveness - whether thin capitalisation rules are exception provisionFOI status: may be released
-
This ATO ID is withdrawn from the database as it is a simple restatement of the law and does not contain an interpretative decision.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Does a debt constitute a commercial debt pursuant to section 245-25 of Schedule 2C to the Income Tax Assessment Act 1936 (ITAA 1936) where interest paid in respect of the debt would be allowable as a deduction apart from the operation of Division 820 of the Income Tax Assessment Act 1997 (ITAA 1997)?
Decision
Yes. The debt is a commercial debt because Division 820 of the ITAA 1997 is an exception provision for the purposes of subsection 245-25(2) of Schedule 2C to the ITAA 1936.
Facts
Debtor executed a loan agreement with Lender.
Interest paid in respect of the loan is not deductible to Debtor because of the operation of Division 820 of the ITAA 1997.
After 27 June 1996, Lender formally released Debtor from repaying the loan.
Reasons for Decision
Section 245-10 of Schedule 2C to the ITAA 1936 provides that Schedule 2C applies where a forgiveness of a commercial debt occurs after 27 June 1996.
The term 'commercial debt' is defined in section 245-25 of Schedule 2C to the ITAA 1936.
Paragraph 245-25(2)(b) of Schedule 2C to the ITAA 1936 provides that a debt is a commercial debt if the whole or any part of interest paid or payable in respect of the debt would be allowable apart from the operation of an exception provision.
The term 'exception provision' is defined in subsection 245-25(5) of Schedule 2C to the ITAA 1936 as follows:
'exception provision
means a provision of this Act that has the effect of preventing a deduction that would otherwise be allowable, but does not include paragraphs 8-1(2)(a), (b) and (c) of the Income Tax Assessment Act 1997 (which prevent deductions for capital, private or domestic outgoings and for outgoings relating to exempt income).'
Division 820 of the ITAA 1997 is therefore an exception provision for the purposes of paragraph 245-25(2)(b) of Schedule 2C to the ITAA 1936
Accordingly Schedule 2C to the ITAA 1936 applies to the forgiveness of the commercial debt owed by Debtor to Lender.
Date of decision: 26 February 2003Year of income: Year ended 30 June 2003
Legislative References:
Income Tax Assessment Act 1936
Schedule 2C, section 245-10
Schedule 2C, section 245-25
Schedule 2C, paragraph 245-25(2)(b)
Schedule 2C, subsection 245-25(5)
Division 820
Keywords
Debt waivers
Debt forgiveness
Thin capitalisation
ISSN: 1445-2782
| Date: | Version: | |
| 26 February 2003 | Original statement | |
| You are here | 21 November 2008 | Archived |