ATO Interpretative Decision
ATO ID 2004/515 (Withdrawn)
Income Tax
Commercial debt forgiveness: notional value of debt - change in creditorFOI status: may be released
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This ATOID is withdrawn from the database because it is a simple restatement of the law and does not contain an interpretative decision.This document incorporates revisions made since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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
In calculating the first applicable amount under subsection 245-55(2) of Schedule 2C to the Income Tax Assessment Act 1936 (ITAA 1936) in circumstances where debtor solvency is to be assumed, is the 'value of the debt' to be determined with regard to the amount paid for the debt by the new creditor, where the rights to the debt were transferred to a new creditor?
Decision
No. The value of the debt is to be determined without regard to the amount actually paid by the new creditor in respect of the debt.
Facts
Debtor incurred a commercial debt as defined in section 245-25 of Schedule 2C to the ITAA 1936 with Creditor.
The face value and market value of the debt at that time were each $1,000.
After 27 June 1996, Creditor sold the debt such that the rights were transferred to New Creditor for its then market value of $800 as Debtor was undergoing financial difficulties.
New Creditor subsequently forgave Debtor the debt under section 245-35 of Schedule 2C to the ITAA 1936 as Debtor was unable to repay any of the $1,000.
The notional value of the debt will be calculated under section 245-55 of Schedule 2C to the ITAA 1936 as sections 245-60 and 245-61 of Schedule 2C to the ITAA 1936 do not apply.
Debtor, Creditor and New Creditor are all unrelated parties and dealt at arm's length in relation to the debt.
There were no changes in any market variables for the purposes of subsection 245-55(2) of Schedule 2C to the ITAA 1936.
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 notional value of a debt is calculated under section 245-55 of Schedule 2C to the ITAA 1936 where sections 245-60 and 245-61 of Schedule 2C do not apply.
As Debtor, Creditor and New Creditor all dealt at arm's length, subsection 245-55(4) of Schedule 2C to the ITAA 1936 has no application.
Therefore the first applicable amount under subsection 245-55(2) of Schedule 2C to the ITAA 1936 is to be calculated as if Debtor was able to repay the debt when it was incurred and when it was forgiven.
The reference to 'incurred' in subsection 245-55(2) of Schedule 2C to the ITAA 1936 refers to the time when Debtor incurred its debt with Creditor as the transfer of Creditor's rights in respect of the debt to New Creditor did not extinguish that debt or result in Debtor incurring a new debt with New Creditor.
As New Creditor has assumed the rights of a creditor in relation to the debt, the reference to 'creditor' in subsection 245-55(2) of Schedule 2C to the ITAA 1936 is referring to New Creditor in these particular circumstances.
Date of decision: 15 June 2004Year of income: Year ended 30 June 2004
Legislative References:
Income Tax Assessment Act 1936
Schedule 2C
section 245-10
section 245-25
section 243-35
section 245-55
subsection 245-55(2)
subsection 245-55(4)
section 245-60
section 245-61
Keywords
Commercial Debt
Commercial Debt Forgiveness
CDF first applicable amount
CDF notional value
Debt forgiveness
Debt waivers
ISSN: 1445-2782
| Date: | Version: | |
| 15 June 2004 | Original statement | |
| You are here | 26 February 2010 | Archived |