Issue
Does section 109F of the Income Tax Assessment Act 1936 (ITAA 1936) operate to deem a private company to have paid a dividend to a deceased's legal personal representative in circumstances where a private company is taken to have made an amalgamated loan to a shareholder who dies before the amalgamated loan is repaid, and the private company forgives the loan while the shareholder's estate is in administration?
Decision
Yes, section 109F of the ITAA 1936 operates to deem a private company to have paid a dividend to a deceased's legal personal representative in circumstances where a private company is taken to have made an amalgamated loan to a shareholder who dies before the amalgamated loan is repaid, and the private company forgives that loan while the shareholder's estate is in administration.
Facts
The individual was a resident of New South Wales.
The individual was a shareholder and director of a private company.
During the 2008-09 income year the private company made a loan to the shareholder.
The loan was subject to a written loan agreement that satisfied the requirements of section 109N of the ITAA 1936.
The shareholder made the required minimum yearly payments since the loan was made.
The shareholder died solvent during the 2011-12 income year.
The shareholder's will nominate an executor (legal personal representative) to administer the shareholder's estate.
Before 30 June 2012, the Supreme Court of New South Wales gives the nominated legal personal representative a Grant of Probate to administer to deceased's estate.
During the 2012-13 income year, during administration of the deceased's estate, the private company forgives the loan owed to it by the shareholder.
Reasons for Decision
All references are to the ITAA 1936 unless otherwise indicated .
For the purposes of Division 7A of Part III, an amalgamated loan is taken to have been made during an income year if a private company makes a constituent loan, or loans, to an entity during the income year which: (a) are not fully repaid before the company's lodgment day for the year, (b) would cause the company to be taken under section 109D to pay a dividend to the entity at the end of the year, apart from section 109N, and (c) have the same maximum term for the purposes of section 109N (subsection 109E(3)).
Because the loan made by the private company to the shareholder satisfied the conditions in subsection 109E(3), it is taken to be an amalgamated loan for the purposes of Division 7A of Part III.
Repayments made in respect of the loan are taken to be repayments made in relation to the amalgamated loan (subsection 109E(4)).
Under subsection 109F(1) a private company is taken to pay a dividend to an entity at the end of the private company's year of income if all or part of a debt the entity owed the private company is forgiven in that year and either: (a) the amount is forgiven when the entity is a shareholder in the private company, or an associate of such a shareholder; or (b) a reasonable person would conclude (having regard to all the circumstances) that the amount is forgiven because the entity has been such a shareholder or associate at some time.
If a private company forgives an amount of debt resulting from a constituent loan taken into account in working out the amount of an amalgamated loan under subsection 109E(3), the private company is taken to forgive the same amount of debt resulting from the amalgamated loan (subsection 109F(7)).
Under subsection 109F(2) the amount of the dividend is equal to the amount of debt forgiven, subject to the private company's distributable surplus as calculated under section 109Y.
Following the Grant of Probate of the individual's will, section 44 of the Probate and Administration Act 1898 (NSW ) deems all real and personal property of the deceased (including title to the shares) to have passed to and become vested in the executor as from the death of the individual.
The deceased's property (including title to the shares) is held absolutely by the legal personal representative for the duration of the administration of the shareholder's estate ( Official Receiver In Bankruptcy v. Schultz [ 1990 ] HCA 45 ; ( 1990) 170 CLR 306 ).
Following the Grant of Probate, the legal personal representative immediately assumes liability to pay the deceased's debts (including the debt owed by the deceased to the private company (the amalgamated loan)) (Certoma, GL 2010, The Law of Succession in New South Wales , 4th edn Thomson Reuters, Sydney, p. 304).
As the title to the shares in the private company passed to the deceased's legal personal representative upon the death, the legal personal representative is the relevant shareholder for the purposes of paragraph 109F(1)(a).
By forgiving the debt owed by the legal personal representative shareholder, the private company is taken to have paid a dividend to the legal personal representative shareholder in the 2012-13 income year. Note : As the private company has not been taken in any income year to have paid a dividend to the shareholder because all minimum yearly repayments have been made, subsections 109G(3A) and 109G(3B) would have no application. If applicable, these subsections would result in the amount of the dividend taken to have been paid under section 109F being reduced by the amount of dividends the private company is taken to have paid under section 109E at the end of earlier years of income in relation to the loan .