The South African Revenue Service (“SARS”) issued Binding Private Ruling 336 on 6 December 2019.
In terms of this ruling, a listed resident company (“the Company”) previously granted a loan to its wholly-owned resident subsidiary (“the Subsidiary”) in order for the Subsidiary to acquire shares in the Company. The Company subsequently decided to deregister the Subsidiary.
In order to affect the deregistration, the Subsidiary proposed to, in anticipation of its deregistration, distribute all its assets (the Company shares) to the Company as a dividend in specie and as a liquidation distribution as contemplated in section 47 of the Income Tax Act. In return, the Company will waive the outstanding loan and cancel the Company shares so distributed by the Subsidiary to the Company. The Subsidiary will then be deregistered.
SARS confirmed in the ruling that no adverse tax consequences should arise for either the Company or the Subsidiary based on the following reasons.
SARS agreed that the distribution of the Company shares by the Subsidiary will constitute a liquidation distribution as contemplated in section 47. The distribution will therefore not result in any capital gains tax consequences for either the Company or the Subsidiary. The Company should furthermore disregard the disposal or any return of capital for purposes of determining its taxable income, assessed loss or aggregate capital gain or aggregate capital losses.
The liquidation distribution constitutes a dividend and must be included in the Company’s gross income. However, SARS confirmed that the dividend will be exempt from income tax in terms of section 10(1)(k)(i). The dividend will also not be subject to dividends tax (section 64G(2)(b)).
No securities transfer tax will arise on the transfer of the shares from the Subsidiary to the Company (section 8(1)(a)(v) of the Securities Transfer Tax Act) and the subsequent cancellation of the shares so received by the Company will not constitute a disposal (paragraph 11(2)(b)(i) of the Eighth Schedule to the Income Tax Act).
The ruling furthermore confirms that paragraph 77 (relating to distributions in liquidation or deregistration received by holders of shares) and paragraph 43A (dividends treated as proceeds on disposal of certain shares) of the Eighth Schedule will also not apply to the proposed transactions.
There will also not be any capital gains tax consequences with regards to the loan waiver as the reduction of debt between connected persons in anticipation of deregistration is specifically excluded in paragraph 12A(6)(e) of the Eighth Schedule.
SARS granted the ruling subject to an additional condition, that is to say, that the Subsidiary takes the required steps to deregister within a period of three years as contemplated in section 41(4).