Deemed dividends - loan agreement written into company constitution

Is a clause in a company's constitution a 'written agreement' for the purposes of paragraph 109N(1)(a) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Yes. The provisions of a company's constitution have effect as a contract between the company and its members and therefore constitute a written agreement.

A private company made a loan to the taxpayer, an individual and the company's sole shareholder, during the income year ended 30 June 2001 under a clause contained in the company's constitution that provides for the private company to make loans to its members.

The clause in the constitution of the private company provides that: • each loan made under the clause is made for the period of 7 years from the date of the loan, and • interest will accrue from the date of the loan on a day to day basis at the benchmark interest rate determined by subsection 109N(2) of the ITAA 1936, calculated on the daily balance of any amount outstanding.

Subsection 109D(1) of the ITAA 1936 can treat a loan made by the private company to the taxpayer as a dividend, unless Subdivision D of Division 7A of Part III of the ITAA 1936 prevents it. Section 109N provides that a private company will not be taken to have paid a dividend where certain requirements in relation to the loan are satisfied.

The first requirement, in paragraph 109N(1)(a) of the ITAA 1936, provides that the loan made to the taxpayer must have been made under a written agreement.

Subsection 140(1) of the Corporations Act 2001 provides that a company's constitution (if any) and any replaceable rules that apply to the company have effect as a contract between: a) the company and each member, and b) the company and each director and company secretary, and c) a member and each other member,

under which each person agrees to observe and perform the constitution and rules so far as they apply to that person.

For the purposes of paragraph 109N(1)(a), the company's constitution is a written agreement between the private company and the taxpayer, as a member or shareholder.