The corporate debt reduction tax rules as an added impediment to companies in financial distress

Abstract

Prior to 1 January 2013, the provisions of the Income Tax Act 58 of 1962 (hereinafter referred to as the Act), which dealt with the consequences of a waiver of a debt for less than full consideration, were predominantly section 8(4)(m) and paragraph 12(5) of the Eighth Schedule to the Act (hereinafter referred to as the previous debt reduction rules). The previous debt reduction rules were replaced by section 19 and paragraph 12A of the Eighth Schedule to the Act, which came into operation 1 January 2013 (hereinafter referred to as the new debt reduction rules). The new debt reduction rules were introduced in an attempt to provide additional relief to financially distressed debtors, where a debt was reduced for less than full consideration. This focus of this research study was to establish whether the design of the new debt reduction rules conceptually facilitate the recovery of financially distressed debtors, where a debt waiver has occurred. This involved a critical analysis of the previous debt reduction rules and the new debt reduction rules to identify the additional relief measures that were introduced, if any. In addition, the new debt reduction rules were compared to the tax rules that apply to a debt waiver in Canada and the United Kingdom. A literature review was performed to analyse and compare the various pieces of legislation in the Act and the Companies Act (71 of 2008), as well as foreign legislation and literature available in respect of similar legislation in Canada and the United Kingdom. The objective of the literature review was to establish whether the new debt reduction rules provide additional relief, compared to the previous debt reduction rules, to companies in financial distress and whether the relief provided in new debt reduction rules provide adequate relief to financially distressed debtors, compared to countries such as Canada and the United Kingdom. The research study revealed that the introduction of the new debt reduction rules did not come with any significant amendments to the relief given to financially distressed debtors in the case of a debt waiver. The research also revealed that the relief provisions that are contained in the new debt reduction rules do not compare favourably to the relief that is given in the case of a debt waiver of a financially distressed debtor in Canada and the United Kingdom. The research study was concluded with suggestions for improvements to the Act, which will provide relief to financially distressed debtors where the new debt reduction rules are currently lacking.