ATO Interpretative Decision
ATO ID 2002/794
Income Tax
Division 974 - non share equity interestsFOI status: may be released
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Is an investment in an unsecured note to be issued by a company to a director a non-share equity interest under Division 974 of the Income Tax Assessment Act 1997 (ITAA 1997), if the returns and the repayment of the investment are contingent upon the profitability of the company?
Decision
Yes. The unsecured note, to be issued by a company to a director, is a non-share equity interest under Division 974 of the ITAA 1997 as the returns and the repayment of the investment are contingent upon the economic performance of the company.
Facts
The taxpayer is a private investment company that is wholly owned by two corporate shareholders. The taxpayer intends to issue a finance raising unsecured note with no fixed maturity date, to its director. The payment of returns on the note, and repayment of the investment amount, will be contingent on the existence of company profits. The returns on the unsecured note are to be calculated as a percentage of the after-tax income of the taxpayer company.
Reasons For The Decision
The debt and equity rules apply to:
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- all schemes (as defined in section 995-1(1) of the ITAA 1997) that come into existence after 1 July 2001 that are a share in legal form; and
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- all schemes that are financing arrangements (as defined in section 974-130 of the ITAA 1997) that come into existence after 1 July 2001.
The debt test under section 974-20 of the ITAA 1997 and the equity test under section 974-70 of the ITAA 1997 are used to determine whether a scheme or combination of schemes give rise to a debt interest or an equity interest, respectively.
A scheme that gives rise to a legal form share (an interest as a member in the company) will give rise to an equity interest at the time it comes into existence, if it does not satisfy the debt test. Unless a financing arrangement scheme satisfies the debt test at the time it comes into existence, that scheme will give rise to an equity interest other than a legal form share (non-share equity interest as defined in section 995-1(1) of the ITAA 1997) in a company, if the interest satisfies one of the equity tests contained in subsection 974-75(1) of the ITAA 1997. Namely the interest:
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- gives rise to a return or a right to a return that is contingent on the economic performance of the company or a connected entity or part of the company's or connected entity's activities; or
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- provides for returns that are at the discretion of the issuer or a connected entity; or
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- gives the holder or a connected entity of the holder the right to be issued with an equity interest in the company or a connected entity, or
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- will or may convert into an equity interest of the issuer or a connected entity.
The unsecured note will give rise to a non-share equity interest in the company because:
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- it is an arrangement or undertaking and thereby satisfies the definition of scheme as contained in section 995-1(1) of the ITAA 1997;
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- it is entered into to raise finance for the company and accordingly, is a financing arrangement as defined in section 974-130 of the ITAA 1997;
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- the returns and repayment of the investment amount are contingent on the profitability (economic performance) of the company, and as a result, satisfy one of the equity tests in subsection 974-75(1) of the ITAA 1997; and
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- it will not satisfy the debt test, as there is no effectively non-contingent obligation to provide a financial benefit as required under paragraph 974-20(1) (c) of the ITAA 1997. That is, the issuer will not have in substance and effect, an obligation to pay returns on the note or repay the investment amount, given that these obligations are contingent upon the profitability of the company.
Year of income: Year ending 30 June 2002 to 30 June 2007
Legislative References:
Income Assessment Act 1997
Division 974
Subsection 974-5(4)
Subsection 974-15(1)
Subsection 974-20(1)
Subsection 974-60(1)
Subsection 974-70(1)
Subsection 974-75(1)
Subsection 974-130(1)
Section 974-135
Subsection 974-160(1)
Subsection 995-1(1)
Other References:
Explanatory memorandum: New Business Tax System (Debt and Equity) Act 2001
Keywords
Debt equity borderline
Date reviewed: 6 November 2017
ISSN: 1445-2782