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Liezel Tredoux and Kathleen van der Linde
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Tredoux LG and Van der Linde KE
"The Taxation of Company
Distributions in Respect of
Hybrid Instruments in South
Africa: Lessons from Australia
and Canada" PER / PELJ
2021(24) -DOI http://dx.doi.org/10.17159/17273781/2021/6781
Abstract
Tax legislation traditionally distinguishes between returns on investment paid on equity and debt instruments. In the main, returns on debt instruments (interest payments) are deductible for the paying company, while distributions on equity instruments (dividends) are not. This difference in taxation can be exploited using hybrid instruments and often leads to a debt bias in investment patterns. South Africa, Australia and Canada have specific rules designed to prevent the circumvention of tax liability when company distributions are made in respect of hybrid instruments. In principle, Australia and Canada apply a more robust approach to prevent tax avoidance and also tend to include a wider range of transactions, as well as an unlimited time period in their regulation of the taxation of distributions on hybrid instruments. In addition to the anti-avoidance function, a strong incentive is created for taxpayers in Australia and Canada to invest in equity instruments as opposed to debt. This article suggests that South Africa should align certain principles in its specific rules regulating hybrid instruments with those in Australia and Canada to ensure optimal functionality of the South African tax legislation. The strengthening of domestic tax law will protect the South African tax base against base erosion and profit shifting through the use of hybrid instruments.
Keywords
Hybrid instrument; hybrid equity instrument; hybrid debt instrument; third-party backed share; non-equity share; non-share equity; term preferred share; guaranteed share; collateralised share; dividend rental agreement; taxable preferred share; taxation of equity investment; taxation of debt instruments; debt bias; economic double taxation; tax avoidance.
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DOI
http://dx.doi.org/10.17159/17273781/2021/v24i0a6781
Economic globalisation and the development of innovative investment instruments in modern financial markets tend to outpace the domestic legislative frameworks regulating their taxation.1 Investors and companies attempt to minimise their tax liability through innovative tax planning and complex corporate finance structures.2 In reaction, increasingly complex domestic tax rules are designed to support the state's need to collect higher amounts in revenue and to protect its tax base.3 These laws are often ineffective, resulting in yet more innovative tax avoidance schemes.4 As a result of the mismatch between the rapidly changing economy and the legislation, many opportunities arise to avoid tax liability, especially in the context of hybrids, derivatives and the many varied instruments of investment available.
Tax factors can influence the choice of investment instrument and the method of returning funds to owners.5 In many jurisdictions, returns on equity instruments such as dividends or capital gains are not deductible at corporate level, but are taxable at both corporate and shareholder level.6
| | Liezel G Tredoux. BA LLB (US) LLM (UP) Advanced Cert in International Tax (UCT) |
| (cum laude) LLD (UJ). Senior Lecturer, Department of Mercantile Law, UNISA, | |
| South Africa. E-mail: classlg@unisa.ac.za. ORCID: https://orcid.org/0000-0002 | |
| 1292-728X. This article is based on reworked extracts from the author’s doctoral | |
| thesis Aspects of the Taxation of Company Distributions in South Africa (2018 thesis | |
| UJ), which was supervised by the second author. I am thankful to the second author | |
| for her invaluable guidance as supervisor and also to the University of South Africa | |
| for providing me with the AQIP research grant which enabled me to conduct research | |
| in Australia, Canada and the Netherlands. | |
| | Kathleen E van der Linde. B Juris LLB Hons BA (PU for CHE) LLM LLD (UNISA). |
| Professor, Department of Mercantile Law, University of Johannesburg, South Africa. | |
| E-mail: kevdlinde@uj.ac.za. ORCID: https://orcid.org/0000-0001-5029-5896. | |
| 1 | De Wilde 2016 BIT 182; Oguttu Offshore Tax Avoidance 1-3, 60; SARS Strategic |
| Plan 51-53. | |
| 2 | Abbas et al. Partial Race to the Bottom 3; Mirrlees et al. Tax by Design 429; OECD |
| 2013 http://www.oecd.org/ctp/BEPSActionPlan.pdf 9; Thuronyi Tax Law Design | |
| 826-827; Martens-Weiner EU Company Tax Reform 80-81; Feldstein, Hines and | |
| Hubbard Effects of Taxation on Multinational Corporations 1. | |
| 3 | Tanzi "Taxation of High Net Worth Individuals" 2-3; Mirrlees et al. Tax by Design 3; |
| Olivier and Honiball International Tax 8; Sullivan Corporate Tax Reform 1. | |
| 4 | Oguttu Offshore Tax Avoidance 7. |
| 5 | Mirrlees et al. 2012 NTJ 674. |
| 6 | McIntyre Deduction of Interest Payments 399; Shaviro 2008 Financial Crisis 45-46; |
| Helminen Concept of Dividend 163; Simon Optimal Debt Bias in Corporate Income | |
| Taxation 1; Teixeira Taxing Corporate Profits 1; Cnossen 2015 Osgoode Hall LJ | |
| 517. |
Interest paid on debt instruments is mostly deductible (principally at corporate level) and subject to only one level of taxation.7
The distortion created by the different tax treatment of equity distributions and debt repayments can be exploited through instruments combining elements of equity and debt.8 A hybrid instrument enables investors to separate the fundamental economic principles of their actions from the tax consequences, causing the substance of the instrument to differ from its legal form.9 Shareholders might, for example, be able to invest in a hybrid instrument that is called an equity instrument, but is nevertheless not exposed to the risks associated with legal restrictions on equity distributions that typically link the return on investment to the performance of the company.10 Conversely, taxpayers could structure a "debt instrument" to receive returns linked to the performance of a company in a manner typical of equity investments. Further tax problems associated with hybrid instruments include inconsistency in treatment, the different treatment of gains and losses, and the deduction of payments without an inclusion on the counter side.11
When a company distributes a return on a hybrid instrument the tax consequences can be difficult to determine, given that tax legislation is mostly designed to tax debt and equity returns separately. Countries thus frequently enact specific anti-avoidance rules such as thin capitalisation12 provisions, rules limiting the deductibility of interest payments, detailed classification rules, or provisions that re-classify the distributions made on such instruments.13 The South African Income Tax Act 58 of 1962 (hereafter the ITA), in the main, re-classifies the distributions in the hands of the recipient without altering the nature of the payment for other parties.14 The Davis Tax Committee did not address the taxation of distributions in respect of hybrid instruments but stated that an incentive to receive dividends is present for taxpayers that are subject to a marginal tax rate above 42,4% (the combined effective corporate and dividend tax rate).15
| 7 | McIntyre Deduction of Interest Payments 399; Shaviro 2008 Financial Crisis 45-46; |
|---|---|
| Helminen Concept of Dividend 163; Simon Optimal Debt Bias in Corporate Income | |
| Taxation 1; Taxing Corporate Profits 1; Cnossen 2015 Osgoode Hall LJ 517. | |
| 8 | Kahlenberg and Kopec 2016 WTJ 38; Diamond 2010 NTJ 1; De Mooij 2015 Fiscal |
| Studies 491-500; Simon Optimal Debt Bias in Corporate Income Taxation 1-4. | |
| 9 | Van der Zwan "Investment" 559. |
| 10 | SARS Explanatory Memorandum 2013 27. |
| 11 | Shaviro 2008 Financial Crisis 17-18; Messere Tax Policy in OECD Countries 332 |
| 333. | |
| 12 | The term "thin capitalisation" refers to the corporate funding of a business being |
| more debt-based than equity-based. See Oguttu 2011 SAYIL 79. | |
| 13 | Sections 31 and 24J of the Income Tax Act 58 of 1962 (the ITA); Oguttu 2011 SAYIL |
| 80. | |
| 14 | Sections 8E, 8EA, 8F and 8FA of the ITA. |
This article analyses the taxation of company distributions on hybrid instruments in South Africa from a functional perspective. It considers the application of these rules in comparison with similar provisions in Australia and Canada to determine whether the principles applied in these jurisdictions could be adjusted for South Africa in order to protect the tax base and curb tax avoidance whilst adhering to the principles of fair taxation and stimulating equity investment. Australia and Canada, as representative of two corporate tax structures different from the South African system, have been selected because they are known for their robust approaches to tax avoidance and for incentivising equity investment. Although the Australian and Canadian corporate tax structures differ from that of South Africa, the rules on hybrid instruments have a similar aim as the expressed intention of the Minister of Finance in South Africa, namely to reduce the debt bias16 in investment patterns, which is considered undesirable.17 We consider Australia and Canada first.
The Australian corporate tax system alleviates economic double taxation on equity instruments by integrating corporate and shareholder-level tax in a full dividend imputation system and granting relief from double taxation at shareholder level.18 When a shareholder receives a dividend, the income
15 Davis Tax Committee 2018 https://www.taxcom.org.za/docs/20180411% 20Final%20DTC%20CIT%20Report%20-%20to%20Minister.pdf 10-11.
16 The phrase "debt bias" refers to the preference of investors to invest in debt instruments (such as debentures, loans, and hybrid instruments) as opposed to equity instruments (such as shares). See Shaviro 2008 Financial Crisis 4-9; Helminen Concept of Dividend 163; Simon Optimal Debt Bias in Corporate Income Taxation 1-4; De Mooij 2015 Fiscal Studies 491-500; Kahlenberg and Kopec 2016 WTJ 38.
17 Davis Tax Committee 2018 https://www.taxcom.org.za/docs/20180411%20 Final%20DTC%20CIT%20Report%20-%20to%20Minister.pdf 10-11. McIntyre is of the view that debt finance is treated too favourably in every tax system to his knowledge (McIntyre Deduction of Interest Payments 399-402), and this treatment is widely criticised as not being an optimal design of a corporate tax system. See Kahlenberg and Kopec 2016 WTJ 38; Diamond 2010 NTJ 1; De Mooij 2015 Fiscal Studies 491-500.
18 CCH Australian MTG 150; Twite 2001 Int Rev Finance 217-218; Gilders et al. Understanding Taxation Law 852.
that the company is distributing, as well as the tax already paid by the company on that income, is attributed to the shareholder. The shareholder receives a "franked dividend", which consists of the dividend plus a notional amount representing the value of the corporate tax that was paid by the company.19 This adding of a notional amount to the assessable income of the shareholder as recipient is referred to as the gross-up mechanism.20 This increased amount is offset by "franking credits" also transferred to the recipient shareholders.21 The value of these franking credits, that essentially represent the tax already paid at corporate level, may be set off against the recipient shareholder's remaining tax liability.22 As a result it reduces the tax liability of the shareholder and eliminates economic double taxation.23
Returns on debt instruments do not qualify for the benefits of the imputation system. Australia thus incentivises investment in equity instruments.
Australia applies a specific test to classify hybrid instruments as either debt or equity.24 It also addresses the use of hybrid instruments in combination with other instruments.25
The legislation emphasises the economic substance of debt or equity interests and not their apparentlegal form.26 It considers elements in a wider arrangement (for example, stapled interests27) as a whole to determine the true economic character of the instruments or transactions, referred to as a blanket approach or integration rule.28 This means that all schemes or instruments are classified as either equity or debt without any apportionment between debt and equity elements.29
| 19 | CCH Australian MTG 172. | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 20 | Section 207.20 of the Income Tax Assessment Act, 1997 (hereafter the ITAA 1997). | |||||||||||||
| 21 | Section | 207.20(1) | of | the | ITAA | 1997 | read | with | s | 44(1)(a) | of | the | Income | Tax |
| Assessment Act, 1936 (hereafter the ITAA 1936). | ||||||||||||||
| 22 | Section 207.20(2) of the ITAA 1997; Taylor et al. Taxation Law 877; Twite 2001 Int | |||||||||||||
| Rev Finance 219-222. | ||||||||||||||
| 23 | CCH Australian MTG 171-172. | |||||||||||||
| 24 | Taylor et al. Taxation Law 751. | |||||||||||||
| 25 | Orow 2001 DFI 322. | |||||||||||||
| 26 | Section 974.5(1) of the ITAA 1997; Murphy 2016 AT Rev 21-22. | |||||||||||||
| 27 | The phrase "stapled interests" refers to investment instruments that are linked to | |||||||||||||
| each other as the facts in Mills v Commissioner of Taxation 2012 HCA 51 (the Mills | ||||||||||||||
| case) indicated, | where | a | hybrid instrument that consisted of | a | promissory note | |||||||||
| issued by a New Zealand bank was stapled to an Australian preference share; Mills | ||||||||||||||
| case paras 29-42. | ||||||||||||||
| 28 | Orow 2001 DFI 322-323; s 974.155 of the ITAA 1997. See Murphy 2016 AT Rev 24 | |||||||||||||
| 25. |
Two tests determine whether an interest is classified as debt or equity, namely the debt test and the equity test.30 The distinction is based on whether investment returns depend on the performance of an entity.31
An interest is classified as a debt interest if the return does not depend on the company's economic performance, the making of a distribution, or on any other event, situation, or condition.32 The debt test requires a reciprocal obligation (that the entity receive a benefit and provide a benefit in return) that is non-contingent.33 The test captures the very essence of debt and is based on simple terminology promoting certainty. To satisfy the debt test, an asset must be provided to finance the entity, which is liquid or a monetary asset, or a sum of money.34
Under the equity test, a scheme or interest qualifies as equity if the interest exists, cannot be characterised as a debt interest in terms of the debt test, and is not part of the larger debt interests in the company or a connected party to the company.35 In contrast with the debt test, which is based on principles and concepts normally used in legislation, the equity test does not identify guidelines for classification and is supplemented by section 974.75 of the ITAA 1997 that lists the types of interest classified as equity.36 This could, however, also have the limiting effect of excluding transactions based on hybrid equity but not listed in section 974.75. Interests are classified as equity only if created as part of a scheme constituting a financing arrangement in relation to the company.37 If an interest can be classified as both debt and equity, it is taxed as a debt interest only.38 When one type of interest is converted into the other, the nature of the new interest is decisive.39
| 29 | Mills case paras 29-42, 73, 76; Orow 2001 DFI 322-323. |
|---|---|
| 30 | Taylor et al. Taxation Law 751; Orow 2001 DFI 322; Murphy 2016 AT Rev 20-21. |
| 31 | Section 974.135 read with s 974.120 of the ITAA 1997; Murphy 2016 AT Rev 26. |
| 32 | Section 974.20(1) of the ITAA 1997; Joseph 2015 DFI 2-3. |
| 33 | Section 974.20(1) of the ITAA 1997. |
| 34 | Section 974.25(1) of the ITAA 1997. |
| 35 | Section 974.70(1)(a)-(b) of the ITAA 1997. |
| 36 | Table 12.1 in s 974.75 of the ITAA 1997. |
| 37 | Section 974.75(2) of the ITAA 1997. |
| 38 | Section 974.1 of the ITAA 1997; CCH Australian MTG 1428. |
| 39 | Taylor et al. Taxation Law 752; Orow 2001 DFI 324. |
As it remains possible for taxpayers to develop hybrid instruments that are neither non-contingent (debt) nor listed as equity in tax legislation, rules were developed to classify instruments as either non-equity shares or non-share equity interests. Specific rules impose tax liability based on the dominant features of the hybrid instrument.
Equity interests other than shares are classified as non-share equity interests.40 Returns on these are treated as non-share dividends and included in the holder's assessable income.41 They are frankable, thus a notional gross-up amount is added to the shareholder's assessable income and a tax credit applied to reduce the tax payable in terms of the imputation system.42 The dividends need not be paid from profit because a deeming rule regards them as paid out of profit for tax purposes irrespective of their source.43 However, if a company has not made a profit, this is an unfrankable distribution and no gross-up and credit is applied.44 This results in only the dividend being added to the assessable income of the taxpayer, and no reduction of economic double taxation. This rule effectively links the taxation to a profit requirement. This could discourage the use of hybrid instruments as an investment choice as there is no tax relief upon distribution on a non-share equity instrument, unless the company earns a profit. It thus adds an element of risk that is normally associated with equity investments to the tax rule, which is an innovative approach to the taxation of hybrid equity instruments.
A share is classified as a hybrid debt interest if the legal form of the investment is a share but the underlying economic substance is one of debt.45 This is referred to as a non-equity share.46 A distribution on a non-equity share is not frankable,47 so there is no tax credit to reduce the recipient's tax liability. The approach is thus similar to that which applies to hybrid equity where no profit is earned by the company. Investors are thus discouraged from using hybrid debt instruments.
| 40 | For example, perpetual debt or limited non-recourse debt can be classified as equity |
|---|---|
| in terms of the debt versus equity rules. See Gilders et al. Understanding Taxation | |
| Law 746; Taylor "Australia" 10. | |
| 41 | Section 974.120 of the ITAA, 1997; CCH Australian MTG 1433. |
| 42 | Section 44(1)(a)(ii) of the ITAA 1936, read with s 202.45(2) of the ITAA 1997. |
| 43 | Section 44(1)(a)(ii) read with s 44(1A) of the ITAA 1936. |
| 44 | Sections 202.45(f), 215.10, 215.15 of the ITAA 1997; Taylor "Australia" 10. |
| 45 | Taylor et al. Taxation Law 752. |
| 46 | Section 202.45 of the ITAA 1997. |
| 47 | Section 202.45 of the ITAA 1997. |
Like Australia, Canada integrates corporate and shareholder level tax in respect of certain dividends on equity shares.48 However, this integration leads only to the partial reduction of economic double taxation in Canada.49 The manner of integration depends on the nature of each corporation, the shareholder, and the type of distribution. Dividends are classified into certain categories depending on the nature, source, and timing of the payment of the dividend, as well as the type of shares held.50 The rules of the integration system apply only to taxable dividends and eligible dividends as defined,51 and different gross-up percentages and tax credits are allocated to each of these types of dividend.52 Taxable dividends received by Canadian resident individuals are subject to the integration rules and a gross-up and credit mechanism.53 Partial integration is achieved by including the dividend in the income of the shareholder and adding a gross-up (a notional amount) to the dividend.54 This gross-up is calculated at a percentage of the value of the cash dividend,55 which is fixed in legislation and adjusted from time to time.56 The percentage depends on the type of corporation making the distribution, and the classification of the dividend as a taxable dividend or an eligible dividend.57 The tax payable is calculated on this higher amount, which exceeds the actual income of the
48 Duff and Loomer Taxation of Business 223-225. 49 Duff and Loomer Taxation of Business 223-225; Tobias Taxation of Corporations
211. 50 CCH Canadian MTG 584. 51 For the definitions of "taxable dividend' and "eligible dividend" see s 89(1) read with
s 248 (1) of the Income Tax Act, 1985 (the ITA 1985); Friedlander Taxation of Corporate Finance 5-25-5-26; Bleiwas, Hutson and Kellough Taxation of Private Corporations 18:7; CCH Canadian MTG 585.
52 CCH Canadian MTG 584. 53 CCH Canadian MTG 584; Tobias Taxation of Corporations 253. 54 Section 121 read with s 82(1)(b) of the ITA 1985; Duff and Loomer Taxation of
Business 234-236; Friedlander Taxation of Corporate Finance para 5-43; CCH
Canadian MTG 585. 55 Section 121 of the ITA 1985. 56 Section 121 of the ITA 1985. 57 Section 89(1) read with s 248 (1) of the ITA 1985; Friedlander Taxation of Corporate
Finance 5-25-5-26; Bleiwas, Hutson and Kellough Taxation of Private Corporations 18:7; Duff and Loomer Taxation of Business 234-237.
shareholder.58 The shareholder may then subtract a non-refundable dividend tax credit (as determined in legislation)59 once the normal computation of income has been made.60 This amount is not linked to the corporate tax actually paid, but offsets the tax assumed to have been paid by the corporation, ensuring that an individual shareholder receives relief proportionate to this presumed tax.61 A gross-up and credit are not available to resident corporate shareholders, but such shareholders are entitled to an intercorporate deduction that in the main corresponds to the amount of that dividend.62 The discrimination between individual shareholders and corporate shareholders is partially remedied by the rules that allow tax-free dividends between corporations, which also reduce double taxation,63 as these dividends are usually distributed further by the shareholder corporation.
A return on a debt instrument is not subject to the rules of the integration system. The Canadian tax system thus incentivises equity investment.
Although the integration system partially eliminates double taxation for individuals, it does not prevent the use of planning strategies involving hybrid instruments.64 Payments in relation to hybrid instruments could lead to an interest deduction and the use of tax credits.65 Unlike Australia, Canada has no general classification rule to distinguish between equity and debt for taxation purposes.66 Each transaction is judged on its own facts.
Given the advantages of using equity instruments in Canada, it is not surprising that most of the specific rules for the taxation of hybrid instruments focus on hybrid equity instruments that do not involve the risks normally attached to equity investments.
| 58 | Duff and Loomer Taxation of Business 234-237. | |||||||
|---|---|---|---|---|---|---|---|---|
| 59 | Section 121 of the ITA 1985; Kerr 1989 UT Fac L Rev 671-672. | |||||||
| 60 | Section | 121 of | the ITA 1985; | Friedlander Taxation | of | Corporate | Finance | 5-43; |
| Mckenzie 2006 CTJ 636; Kerr 1989 UT Fac L Rev 675. | ||||||||
| 61 | Section 121 of the ITA 1985; CCH Canadian MTG 1683; Duff and Loomer Taxation of | |||||||
| Business 234-236. | ||||||||
| 62 | Section 112(2) read with s 248(1) of the ITA 1985. | |||||||
| 63 | Krishna Income Tax Law 453. | |||||||
| 64 | Krishna Income Tax Law 417-418. | |||||||
| 65 | Krishna Income Tax Law 417-418. | |||||||
| 66 | Edgar 1990 CTJ 1141-1188. |
Distributions on equity instruments containing debt elements are subject to specific rules. Where a non-corporate shareholder receives a return on a hybrid equity instrument, there will be no credit that can be offset against the receipt as the return falls outside the integration rules which apply to taxable dividends.67 In respect of corporate shareholders who receive dividends in relation to term preferred shares, guaranteed shares, and collateralised shares, the denial of the intercorporate deduction ensures the Canada Revenue Agency (hereafter the CRA) some protection from the abuse of the tax system.68 In addition, the rules on taxable preferred shares (namely Part IV.I and Part VI.I tax) ensure that an appropriate amount of tax is paid on distributions on “preferred shares”.69
A dividend received by a Canadian resident corporation is usually included in the net income of the recipient and a specific deduction is granted, subject to specific requirements.70 In effect, dividends paid from a Canadian corporation to another Canadian corporation (as shareholder) are usually received tax-free.71 However, specific rules exclude the intercorporate deduction based on the nature of the corporations involved,72 the type of shares held,73 and the nature of the underlying agreement in respect of the share.74 These provisions prevent the avoidance of tax liability by specific types of corporation that enter into after tax financing arrangements or develop instruments exploiting the difference in the tax treatment of interest and dividends.75
Equity instruments coupled with agreements that secure repayment of the original investment are particularly attractive to taxpayers who cannot otherwise claim interest deductions.76 The repayment can be secured by granting the shareholder rights to redeem, cancel or reduce share capital77 or through less formal guarantees against risks.
| 67 | Section 82 read with s 12(1)(j) of the ITA 1985. | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| 68 | Duff | and | Loomer | Taxation | of | Business | 243; | Friedlander | Taxation | of | Corporate |
| Finance para 5-44; CCH Canadian MTG 581-582; Kerr 1989 UT Fac L Rev 671-672. | |||||||||||
| 69 | Duff and Loomer Taxation of Business 260. | ||||||||||
| 70 | Section 82 read with s 12(1)(j) and s 112(1) of the ITA 1985. | ||||||||||
| 71 | Section 112(6) of the ITA 1985; CCH Canadian MTG 581-582. Although the same | ||||||||||
| result may be achieved in respect of intercorporate dividends in South Africa, it must | |||||||||||
| be noted that s 64F of the ITA relies on a different mechanism, namely an exemption. | |||||||||||
| 72 | Section 112(2) read with s 248(1) of the ITA 1985, defining "dividend". | ||||||||||
| 73 | CCH Canadian MTG 581-582. | ||||||||||
| 74 | Section 112(1) of the ITA 1985; Duff and Loomer Taxation of Business 243, 247-248; | ||||||||||
| Friedlander Taxation of Corporate Finance para 5-44. | |||||||||||
| 75 | Duff and Loomer Taxation of Business 247-248; Krishna Income Tax Law 423-424. | ||||||||||
| 76 | Krishna Income Tax Law 423-424. |
The intercorporate deduction is denied mainly when dividends are paid by certain corporations on term preferred shares,78 shares having protection or a guarantee attached to it,79 collateralised preferred shares that allow the transfer of losses,80 or shares that are part of a dividend rental agreement where one party carries the risk of loss while another party is entitled to the dividend.81
Instead of denying the intercorporate deduction, two specific types of tax (Part IV.I and Part VI.I tax) apply to dividends paid in respect of taxable preferred shares82 and short-term preferred shares.83 Part VI.I imposes tax on the paying corporation, irrespective of whether the recipient is an individual or corporation, whereas Part IV.I levies a tax on the recipient corporation in respect of dividends on taxable preferred shares.84 The purpose is to prevent the transfer of losses, deductions and tax credits to corporate shareholders of taxable preferred shares in respect of which an appropriate amount of tax was not paid.85 These taxes also prevent the use of after tax financing arrangements to obtain tax free distributions between
77 Section 248(1) of the ITA 1985 defining "term preferred share" para (a)(iii); CCH Canadian MTG 583; Duff and Loomer Taxation of Business 248; Friedlander Taxation of Corporate Finance paras 5-48-5-49.
78 Section 112(2.1) of the ITA 1985; s 248(1) of the ITA 1985 defining "term preferred share" para (a)(iii). The courts usually require a formal legal guarantee or indemnity by the corporation for the shares to be classified as term preferred. See Citibank Canada v R 2001 CanLII 592 (TCC) paras [21]-[22]; Esplen v R 1996 DTC 1272 (TCC) 1276; CCH Canadian MTG 582-583; Duff and Loomer Taxation of Business 247-248; Friedlander Taxation of Corporate Finance paras 5-48-5-49.
79 Section 112(2.2)(a) read with s 112(2.4) of the ITA 1985. 80 Section 112(2.4)-112(2.9) of the ITA 1985. However, the prohibition of the intercorporate deduction will not apply to exempt shares as defined; s 112(2.4)-112
(2.9) of the ITA 1985.
81 Section 112(2.3) of the ITA 1985; s 248(1) of the ITA 1985, defining "dividend rental agreement" para (a)(i) and (ii); Doris Trucking Company Limited v Minister of National Revenue 1968 2 Ex CR 501, 505; Jordan's Rugs Ltd v Minister of National Revenue 1969 CTC 405 409-410; CP Loewen Enterprises Ltd v Minister of National Revenue 1993 1 CTC 2153; McAllister Drilling Ltd v R 1994 2 CTC 211.
82 Section 248(1) of the ITA 1985, defining "taxable preferred share".
83 Section 248(1) of the ITA 1985, the definition of "short-term preferred share"; CCH Canadian MTG 583, 1314; Friedlander Taxation of Corporate Finance 5-69; Duff and Loomer Taxation of Business 260.
84 Section 187.2 of the ITA 1985; Friedlander Taxation of Corporate Finance 5-77; CCH Canadian MTG 1278; Duff and Loomer Taxation of Business 260. 85 Friedlander Taxation of Corporate Finance 5-77.
corporations in circumstances where certain guarantees are attached to shares.86
The combined effect of the Part VI.I and Part VI.I taxes is that the tax paid corresponds to the rate at which interest would have been taxed if the recipient corporation were taxable at a rate of 28.5 per cent.87 This tax rate reflects the approximate combined federal and provincial tax rate.88 This tax treatment is appropriate as the substance of the taxable preferred shares often corresponds with debt instruments.
When a distribution is made by a resident corporation on a hybrid debt instrument such as an income bond or debenture in respect of interest, it is treated as a deemed dividend for tax purposes – unless it is deductible for the company making the payment.89 These deemed dividends are taxed like any other taxable dividend.90 If the recipient is a corporation, the normal intercorporate dividend rules apply, and the dividend is deductible in terms of section 112 of the ITA 1985.91 However, if this interest is received as part of a return on an income bond granted to provide relief to a party experiencing financial difficulty, it is not deductible by the corporation paying it.92
4 The taxation of company distributions on hybrid instruments in South Africa
In South Africa, company and shareholder taxation is not integrated, but a hybrid dual rate system is applied.93 The company first pays income tax on the amounts it receives, and then another layer of taxation – dividend withholding tax – is levied on the beneficial owner upon the distribution of profit.94 This could be classified as economic double taxation as the same income is taxed twice in the hands of different recipients.95 While certain deductions and exemptions aim to reduce this double taxation, they do not prevent it completely.96 The dividend tax rate is twenty per cent and not linked to the individual marginal tax rates.97 For lower income-earning shareholders this rate would be higher than their marginal rate,98 thus undermining progressivity.
| 86 | Friedlander Taxation of Corporate Finance 5-77. |
|---|---|
| 87 | CCH Canadian MTG 260. |
| 88 | CCH Canadian MTG 260. |
| 89 | Section 15(3) of the ITA 1985; Krishna Income Tax Law 429. |
| 90 | Krishna Income Tax Law 429. |
| 91 | Krishna Income Tax Law 429. |
| 92 | Indirect transfers of value are regulated in s 51(2) of the ITA 1985, which deals with |
| the conversion of shares or the debt of a corporation to shares in the corporation. | |
| Section 85(1)(e.2) of the ITA 1985 contains rules for the transfer of eligible property in | |
| exchange for shares; s 86(2) of the ITA 1985, addresses the exchange of shares by | |
| a shareholder in the course of the reorganisation of capital; and s 87(4) of the ITA | |
| 1985 deals with the exchange of shares on amalgamation, see s 18(1)(g) of the ITA | |
| 1985. | |
| 93 | Olivier and Honiball International Tax 76-77. |
The sheltering of income and the deferral of tax liability also pose challenges. National Treasury's policy is that the tax base for company distributions should be all net accretions of wealth, and not only profit.99 In principle, the return of the amount which was originally contributed by a shareholder should not be taxable.100 In the case of hybrid instruments, the taxation of distributions depends on the classification of the underlying investment instrument.
The ITA contains specific anti-avoidance provisions targeting the creative structuring of finance agreements through hybrid instruments that were introduced in 2011.101 Sections 8E and 8F respectively define "hybrid equity instrument" and "hybrid debt instrument" and together with sections 8EA and 8FA deal with the debt versus equity distinction in a flexible manner, depending on whether each instrument or the amounts distributed on it complies with certain definitions and requirements.102 Commercial and contractual obligations underlie the classification.103 This classification is not binding on the investor in all circumstances, but was created to facilitate the
94 Section 64EA(a) of the ITA. Van der Zwan "Companies" 692. 95 Olivier and Honiball International Tax 6. 96 Olivier and Honiball International Tax 6. There is a presumption in South African tax
law that double taxation should be avoided when the ITA is applied, as confirmed in
one of the majority judgments in CIR v Delfos 1933 AD 242, which was in turn
confirmed in ITC 66 SATC 125 and CIR v Hullet Aluminium (Pty) Ltd 62 SATC 483. 97 Section 64E(1)(a)(i) of the ITA. 98 Section 64E(1)(a)(i) of the ITA; Harris 2010 BTR 578-579. 99 National Treasury 2007 http://www.treasury.gov.za/public%20comments/
STC%20Discussion%20Document%20%2020%%20 1. 100 National Treasury 2007 http://www.treasury.gov.za/public%20comments/STC%20
Discussion%20Document%20%2020%%20 1. 101 See ss 8E-8FA of the ITA. 102 West and West "Debt-Equity Conundrum" 633. 103 West and West "Debt-Equity Conundrum" 640.
application of tax legislation.104 The specific anti-avoidance measures seldom re-classify an instrument as either debt or equity, but may re-classify the income or capital distributed in relation to such instruments for tax purposes without altering the nature of the payment for other parties.105 This re-classification is based on objective criteria and does not expressly depend on a determination by the Commissioner, although the Commissioner might invoke the GAAR or exercise other discretions under the Tax Administration Act 28 of 2011 (hereafter the TAA), when appropriate.106 The re-classification of the instruments or the returns usually ensures that distributions are taxable in accordance with their substance and not their form.107 The ITA regulates hybrid equity instruments, third-party-backed shares, and hybrid debt instruments.
A taxpayer may benefit from a distribution on a hybrid equity instrument as it cannot be classified as an amount transferred "in respect of a share" as required for dividends tax liability.108 This distribution may escape dividend tax on this basis, or be subject to income tax only, depending on the circumstances.109 However, the holder's right to a return may not be contingent on the company's performance or profits (as is generally the case for shares), but is based on agreement between the parties.110 The hybrid equity rules in section 8E prevent tax avoidance when a distribution is made on an equity instrument which contains elements of debt.111 It targets the taxation of short-term investments redeemable by the investor, as these are essentially considered to be loans.112
The definition of hybrid equity instrument covers three alternatives. Firstly, it includes a share that is not an equity share, which places the issuer under an obligation to redeem the share within a three-year period from the date of its issue, or where the share may be so redeemed, in whole or in part,113
104 West and West "Debt-Equity Conundrum" 640. 105 Sections 8E, 8EA, 8F and 8FA of the ITA. 106 West and West "Debt-Equity Conundrum" 640. 107 Van der Zwan "Investment" 558. 108 A causal link to the share is required. See s 1 of the ITA, definition of "dividend". 109 Van der Zwan "Investment" 558. 110 De Koker and Williams Silke on SA Income Tax para 9.1; Clegg and Stretch Income
Tax para 12.14; Stiglingh et al Silke: SA Income Tax 2018 518. 111 De Koker and Williams Silke on SA Income Tax para 9.1; Clegg and Stretch Income
Tax para 12.14; Van der Zwan "Investment" 558-559. 112 Seligson 2011 BTCLQ 1. 113 Section 8(1)(a)(i) of the Taxation Laws Amendment Act 34 of 2019 amended the
phrase "in whole or in part" and replaced it with the distribution of a return of capital or foreign return of capital, which can also be done in whole or in part. This broadens
at the option of the holder.114 Secondly, it includes shares, redeemable within three years115 that either do not rank equally with equity shares or any dividend which is determined with reference to the time value of money.116 The third alternative includes preference shares117 secured by a financial instrument118 or linked to a financial arrangement which prohibits the disposal of the share if it is not issued for a "qualifying purpose".119 Preference shares issued for a qualifying purpose are not classified as hybrid equity instruments.120
An amendment to extend the three-year period in paragraph (a) of the definition to ten years was contained in the Draft Taxation Laws Amendment Bill, 2011 but not included in the final legislation.121 The definition of "date of issue" was amended to include redemption at a date in the future.122 The definition in paragraph (c) addresses this timing rule by extending its application to any preference share irrespective of the three-year redemption period.123 In this part redemption is not mentioned. One could argue that the date of issue becomes irrelevant as any redeemable preference share could still be classified as a hybrid equity instrument in terms of paragraph (c) of the definition. Paragraph (c), however, is limited to preference shares secured by a financial instrument. This instrument is specifically defined as an interest-bearing arrangement, or an arrangement which applies a specified rate of interest or the time value of money.124 Other forms of security will not suffice. If the share is secured by an interest-free arrangement, it does not fall within paragraph (c),125 and the three-year
the scope of this definition to include the redemption of shares and returns of capital. Consequential amendments were also promulgated in s 8 of this Amendment Act to include arrangements that provide for the exercise of an option which requires a distribution of a return on capital, or foreign return of capital, in the definition of a hybrid equity instrument.
114 Section 8E(1) of the ITA, defining "hybrid equity instrument" para (a); Kruger et al.
Tax Strategy 229-230. 115 Section 8E(1) of the ITA, defining "hybrid equity instrument" para (b)(i) (aa)-(cc). 116 Section 8E(1) of the ITA, defining "hybrid equity instrument" para (b). 117 Section 8E(1) of the ITA defining " preference share". 118 A "financial instrument" is defined in s 8E(1) of the ITA. 119 Section 8E(1) of the ITA, defining " hybrid equity instrument" para (c). S 8E(1) defines
"qualifying purpose" by simply referring to the definition in section 8EA(1) of the ITA. 120 Rudnicki 2013 BTCLQ 8. 121 Seligson 2011 BTCLQ 1, 2-3, 7 and 9 criticises the three-year limitation. 122 Section 8E(1) of the ITA, defining "date of issue". 123 Rudnicki 2013 BTCLQ 2. 124 Section 8E(1) of the ITA, 1962, defining "financial instrument". 125 Rudnicki 2013 BTCLQ 3.
limitation in paragraph (a) will still apply as the subsections are disjunctive.126
A dividend declared on a hybrid equity instrument is deemed to be income accruing to the recipient.127 No exemptions from income tax are allowed as the amount already constitutes income as defined.128 Because it is reclassified as income, amounts may be deducted from it as part of the normal computation of taxable income. No adjustment or re-classification is allowed in respect of this distribution in the hands of the company.129 The company is treated as if a dividend has been paid, yet no dividend tax consequences arise from this transaction.130 The tax treatment of hybrid equity is thus similar to the tax treatment of debt, which makes sense. Save for the amendment of the time limit, we find it appropriate that distributions received in respect of hybrid equity instruments be taxed as income.
In essence, a third-party-backed share is a preference share in respect of which the return or yield is guaranteed by another party.131 A specific anti-avoidance rule ensures that the substance of the transaction is taxable.132 This rule targets special-purpose vehicles using artificial financial arrangements.133 It prevents the receipt of a tax-free dividend where a lender receives a return from the borrower, instead of interest.134 The definition of a preference share does not include all equity shares, but only those which specifically determine the dividend payable at a specified interest rate, or with reference to the time value of money.135
126 See ss 8E(1)(b) and (c) of the ITA, defining "hybrid equity instrument", that are separated by the conjunction "or".
127 Section 8E(2) of the ITA.
128 Van der Zwan "Investment" 558-559. The interest exemption for natural persons under s 10(1)(i), for example, would not apply.
129 De Koker and Williams Silke on SA Income Tax paras 9.1, 9.31A.
130 De Koker and Williams Silke on SA Income Tax paras 9.1, 9.31A.
131 Clegg and Stretch Income Tax para 12.15; De Koker and Williams Silke on SA Income Tax para 9.34.
132 Section 8EA(1) of the ITA applies where a specific dividend or foreign dividend, return of capital, or foreign return of capital is guaranteed, or a return of capital is guaranteed in respect of a preference share by a third party who is not the party that issues the shares.
133 De Koker and Williams Silke on SA Income Tax para 9.32.
134 De Koker and Williams Silke on SA Income Tax para 9.32.
135 Section 8EA(1) of the ITA.
The anti-avoidance rules in section 8EA of the Income Tax Act, 1962, apply to preference shares and equity instruments136 in terms of which an enforcement right137 is exercisable if a dividend or a return of capital is not received by, or does not accrue to the person entitled to it, and the holder has a right to enforce the payment of a dividend.138 If the recipient receives an exempt dividend, or foreign dividend income in cash, on a third-party-backed share at any time during the year of assessment, it is deemed to be income of only that specific recipient and the paying company is treated as if a dividend has been paid.139 No exemptions from income tax apply, and this distribution is not subject to the dividends tax provisions.140 This "deemed conversion rule" applies to the income and not the instrument.141
A so-called "safe haven" rule applies if the consideration paid is used to acquire equity shares in an operating company.142 This exception allows the use of debt finance to acquire preference shares.143 If the amounts are obtained from the issuing of preference shares for certain qualifying purposes144 and by certain persons,145 the shares will not be classified as third-party-backed shares.146
The definition of equity instrument still limits the application of the provisions to situations where preference shares are involved, which, in turn, are defined to include only specific types of equity share. In the 2017 Budget Speech it was announced that the exceptions to this section are too narrow
136 The value of the rights obtained under an equity instrument must be determined with reference to a preference share or an amount derived from it. See s 8EA(1) of the ITA, defining " equity instrument".
137 The term "enforcement right" is defined in s 8EA(1) of the ITA.
138 Section 8EA(1) of the ITA, defining "third-party backed share" read with s 8EA(3) of the ITA. The definition of equity instrument is wide as it refers to any instrument in respect of which an enforcement right is exercisable due to an amount not being received or not accruing to a person who is entitled to such an amount. See s 8EA(1) of the ITA, definition of "third-party backed instrument".
139 Section 8EA(1) of the ITA, defining "third-party backed share". If the instrument no longer complies with the definition in the following tax year, the transaction will not be subject to the deeming rules. See De Koker and Williams Silke on SA Income Tax paras 9.1 and 9.34; Rudnicki 2012 BTCLQ 4.
140 Section 8EA(2) of the ITA, read with s 8EA(1) of the ITA, defining "third-party backed
share". 141 De Koker and Williams Silke on SA Income Tax paras 9.1, 9.32. 142 Section 8EA(3) of the ITA. 143 De Koker and Williams Silke on SA Income Tax para 9.32; Van der Zwan
"Investment" 563. 144 Section 8EA(1) of the ITA, defines "qualifying purpose"; Rudnicki 2013 BTCLQ 6-8. 145 In terms of s 8EA(3) of the ITA. See De Koker and Williams Silke on SA Income Tax
para 9.32; Van der Zwan "Investment" 563; Rudnicki 2012 BTCLQ 5. 146 Section 8EA(3) of the ITA, read with s 8EA(1) of the ITA, defining "qualifying purpose".
and may prevent legitimate transactions.147 At the time of writing this article no amendments had yet been proposed.
A hybrid debt instrument islabelled as debt, but contains equity elements.148 The specific anti-avoidance rules applicable to hybrid debt instruments entail a two-level approach.149 First, the form and true nature (substance) of the instrument is evaluated.150 Secondly, the return on that instrument is adjusted to be more closely aligned with the true substance of the payment.151 This prevents the company from structuring payments that are similar to dividends to resemble tax deductible interest payments.152 Otherwise the tax base would be eroded by a mismatch between the amounts deducted and the income inclusions or dividends.153
A hybrid debt instrument is an interest-bearing arrangement or debt in terms of which the company owes an amount and there is an arrangement154 to convert the instrument for shares, or the obligation to pay an amount is conditional on the market value of the assets exceeding the market value of the liabilities of the company, or the company owes an amount to a person connected to it and the company is not obliged to convert the amount.155
The classification of an instrument as a hybrid debt instrument depends on the conversion rights or obligations exercisable under the instrument as a whole, and each tax year requires its own determination.156 The deduction of interest incurred by a company in respect of a hybrid debt instrument is denied.157 The instrument remains a debt instrument for all other purposes.158 The interest is deemed to be a "dividend in specie" paid on the
147 Anon 2017 Taxgram 3. 148 SARS Explanatory Memorandum 2013 27. 149 SARS Explanatory Memorandum 2013 27-28. 150 SARS Explanatory Memorandum 2013 27-28. 151 SARS Explanatory Memorandum 2013 27-28. 152 SARS Explanatory Memorandum 2013 27-28. 153 SARS Explanatory Memorandum 2013 27-28. 154 An arrangement here refers to an arrangement as defined in s 80L of the ITA. 155 Section 8F(1) of the ITA, defining "hybrid debt instrument"; Kruger et al. Tax Strategy
228.
156 Section 8FA of the ITA. In terms of s 8F(3)(a) of the ITA, this classification is not applicable to a small business corporation in terms of s 12E, or certain tier 1 or 2 capital instruments as listed in the Banks Act 94 of 1990, the Short-Term Insurance Act 53 of 1998, and the Long-Term Insurance Act 52 of 1998. See ss 8F(3)(b) and 8F(3)(c) of the ITA.
157 Section 8F(2)(a) of the ITA. 158 SARS Explanatory Memorandum 2013 27-28.
last day of the year of assessment.159 This payment is an exempt payment for income tax purposes.160
The classification of a hybrid debt instrument is supplemented by the classification rules on hybrid interest.161 If an amount is classified as hybrid interest, its payment is re-classified as a "dividend in specie", irrespective of the nature of the underlying instrument.162 Hybrid interest is defined as interest determined without reference to a specific rate of interest or the time value of money.163 In addition, if the rate of interest of a specific instrument increases on the basis of the increase in profit of the company,164 the interest is re-determined at the increased rate less the lowest amount of interest on the instrument during that year of assessment and the previous five years.165
The conversion of interest into a dividend in specie applies to the issuer of the instrument who will be taxable under normal income tax provisions, but is denied an interest deduction, whereas the recipient will be treated as having received a dividend in specie.166 The instrument as a whole is considered, the classification is made in every year of assessment and not only when the instrument is issued, and a wide criterion for classification is used.167 The interest will not be deductible from the time it becomes indebted.168
Although both the issuer and the holder of the instrument are affected, the tax consequences for these two parties differ significantly. De Koker and Williams state that the conversion has tax consequences applicable only to the issuer of the hybrid debt instrument. This leaves the hybrid debt instrument as a debt in legal form, while for tax purposes the substance of
159 Section 8F(2)(b) of the ITA. For an overview of the tax consequences see Da Silva 2015 Without Prejudice 23-24; Van der Zwan "Investment" 565; De Koker and Williams Silke on SA Income Tax para 9.32C.
160 Section 10(1)(k)(i) of the ITA.
161 See s 8FA of the ITA for amounts incurred after 1 April 2014. For policy reasons, small businesses, bank-regulated capital, regulated insurers, certain pension funds, REITS, and long-term insurers are excluded from the hybrid interest rules and the hybrid debt instrument classification; see s 8FA(3) of the ITA.
162 Section 8F(2)(b) of the ITA. 163 Section 8FA(1) of the ITA, defining" hybrid interest". 164 Section 8FA(1) of the ITA, defining " hybrid interest". 165 De Koker and Williams Silke on SA Income Tax para 9.32. 166 De Koker and Williams Silke on SA Income Tax para 9.32C. 167 Stiglingh et al. Silke: SA Income Tax 2018 555-556; De Koker and Williams Silke on
SA Income Tax para 9.32C. 168 Section 8FA the definition of "hybrid interest" and the definition of "issue".
the transaction is classified as equity.169 This view is relevant as the taxation of a distribution of an asset in specie differs significantly from that of interest or a cash dividend. SARS regards this interest payment as potentially subject to dividends tax.170 Although there is no specific definition of the phrase "dividend in specie" in the ITA, this SARS interpretation is correct, as the definition of a dividend in section 64E includes "any" dividend as defined, which also includes dividends in specie.171
The comparative table below attempts to provide a practical illustration of the treatment of hybrid debt instruments and hybrid equity instruments in the three legal systems under consideration. It shows the effect where a distribution is made to individual (non-corporate) taxpayers resident for tax purposes in the same country as the company and taxed at marginal rates of 18% and 45% respectively. These rates represent the minimum and maximum marginal rates for South Africa172 and are comparable with those for Australia (19% -45%).173 Canada has both federal and provincial taxes on income and while federal rates range from 15% to 33%, the combined federal and provincial rate could be as much as 54% (Nova Scotia). 174 Given the diverging tax treatment of hybrid equity and hybrid debt at corporate tax level, the table shows the amount a company must earn in order to distribute the notional figure of 100 to the investor in each instance, although in practice return rates on debt and equity tend to differ in response to the tax consequences for the company and the investor. The calculation uses applicable corporate tax rates for companies not qualifying for special lower rates in Australia and Canada. For Canada, we assume the corporation is taxed in Ontario and thus apply the effective combined federal (15%) and provincial (11.5%) corporate tax rate.175 Accordingly, we also apply the combined federal (15%) and Ontario (10%) imputation credit to
169 De Koker and Williams Silke on SA Income Tax para 9.32C. 170 SARS Explanatory Memorandum 2013 30. 171 See s 64E read with s 1 of the ITA, defining "dividend". Also see Van der Zwan in
Stiglingh et al. Silke: SA Income. 172 Stiglingh et al. Silke: SA Income Tax 2020 21. 173 Section 5 of the Income Tax Act, 1986; CCH Australian MTG 2036-2037. 174 Duff and Loomer Taxation of Business 226-231. 175 Government of Canada 2020 https://www.canada.ca/en/revenue-agency/
services/tax/individuals/topics/about-your-tax-return/tax-return/completing-a-tax
return/deductions-credits-expenses/line-40425-federal-dividend-tax-credit.html.
the grossed-up amount.176 Although the deductibility of interest-like payments depends on detailed rules based on factors such as the purpose to which the borrowed funds is applied, we assume that such returns on hybrid equity instruments will indeed be deductible by the distributing company. Our notional calculation is an over-simplification that disregards other corporate and personal income and does not consider taxes on capital gains. In both Australia and Canada, the investment income of the recipient of the distribution forms part of the normal income tax computation and may thus be further reduced by other deductions and exemptions.177 This is not the case in South Africa, where the dividend is mostly exempt from income tax and the withholding tax levied on dividends applies, as a final tax on the gross amount of the dividend.178
176 Section 121(b)(iv) of the Canadian ITA 1985 provides that the credit is 6/11 of the amount added as a gross-up. This equates to 15.0198% of the total grossed-up value of the dividend, (6/11 x 38) / 138 = 15.0198%, which we rounded to 15%.
177 Section 12(1)(j) and (k) read with s 82 of the Canadian ITA 1985; CCH Canadian MTG 178; s 44(1)(b) of the Australian ITAA 1936; Taylor "Australia" 6.
178 S 10(1)(k) of the ITA; Stiglingh et al Silke: SA Income Tax 2020 701-702.
Table 1: Comparative illustration of tax on hybrid instruments
The corporate tax structure in both Australia and Canada creates an incentive to invest in equity as opposed to debt, as certain shareholders are able to apply a tax credit to reduce their eventual tax liability if dividends were distributed to them. The integration of shareholder and corporate level tax in these two jurisdictions nevertheless results in the taxation of dividends at the marginal tax rates of the individual shareholders (or the flat rate that applies to companies in Australia only). In South Africa, by contrast, dividends are taxed at a flat rate of 20%. The exemption for dividends under s 10(1)(k) results their exclusion from income taxed at the taxpayer's marginal tax rate. The Davis Committee is correct in its analysis that for shareholders taxed at a marginal rate in excess of the effective combined corporate and dividend rate of 42,4 per cent, there is an incentive to receive dividends. But most taxpayers are subject to lower marginal rates and are disincentivised from equity investment. Unlike in Australia and Canada, the application of the rules of the corporate tax structure in South Africa results in a compromise of progressivity, which undermines the principle of equity. South Africa would do well to consider a more equitable corporate tax structure.
All three of the jurisdictions analysed rely on specific rules to prevent the circumvention of the normal tax consequences of company distributions through the use of hybrid instruments. Different approaches were observed.
Australia classifies most instruments as either debt or equity, which is a commendable approach from the perspective of simplicity. The classification of a debt instrument is based on whether the payment of a return depends on the performance of the entity or is contingent in any way, while equity instruments are classified in terms of a list of characteristics contained in legislation. Classification depends on clear principles and normal legal terminology which is easier to apply than the unique terminology in the South African legislation. The Australian effort of enhancing clarity through specific classification lists for equity instruments enables legislators to better align the law with the speed at which new instruments are developed, as such lists can be changed reactively to include new transactions without changing the underlying legal principles. The specific rules regulating distributions on hybrid instruments provide added protection for the tax base.
In contrast, Canadian tax legislation requires that each transaction be judged based on the nature of the underlying agreement. It then re-classifies amounts, or applies other rules in respect of specific types of shares. If an amount is paid to an individual in respect of a hybrid debt instrument, this distribution is re-classified as a deemed dividend in relation to certain hybrid instruments. If a dividend is paid to a corporation on shares that are guaranteed, or issued with preferential terms, or that contain debt-like elements, the inter-corporate dividend deduction is denied. This discourages the use of hybrid instruments. The Canadian rules are quite varied, complex and comprehensive, leaving very little room for tax planning through distributions on hybrid instruments.
The South African ITA, like the Canadian ITA 1985, regulates the taxation of hybrid instruments without classifying the nature of the instrument as either debt or equity. In most cases the distribution is re-classified only so as to calculate the tax liability of the recipient, while the nature of the payment remains unchanged from the company's perspective.
As South African tax legislation defines hybrid instruments as either hybrid equity instruments, hybrid debt instruments, or third-party-backed shares, and applies different rules to the reclassification of distributions on them, the comparison below considers the treatment of each of these in the different jurisdictions, despite differences in terminology.
The jurisdictions observed use different terminology to classify hybrid equity instruments. Australia refers to these as non-equity shares while Canada classifies them as term preferred shares, taxable preferred shares, or guaranteed shares, and South Africa uses the term hybrid equity instrument. The tax rules for distributions on these instruments also differ. Although the general rules in Australia classify an instrument as either debt or equity, specific anti-avoidance rules apply to non-equity shares, which is the Australian equivalent of South Africa's hybrid equity instruments. A distribution made on non-equity shares is taxable as a frankable dividend if a company derived profit corresponding to the taxation of dividends on "normal" equity instruments. However, if no profit was derived, this dividend is not frankable and the rules of the imputation system will not apply to it. These rules send a clear message that the policy rationale is to link the normal risks of investing in equity instruments to the tax consequences that apply to a distribution in respect of hybrid equity instruments. This could encourage investment in equity shares where the gross-up and credit mechanism applies to all dividends, irrespective of whether or not the company actually derived profit.
In Canada, the inter-corporate dividend deduction is denied for dividends paid to corporate shareholders on term preferred shares or guaranteed shares (hybrid equity instruments). When a distribution is made to an individual or a corporation on such an instrument, the taxable preferred share rules might apply. The definition of a taxable preferred share is wide and includes the granting of conversion or redemption rights, a guarantee arrangement, or other preferences or conditions attached to these shares that are not ordinarily available to equity shares. This wider approach is commendable and an approach which South Africa could consider in future to broaden its tax base. In contrast, the hybrid equity rules in South Africa have many exclusions and limitations (such as the qualifying purpose exclusion, the linking of the equity share definition to preference shares and limitation of the form of security to instruments linked to the specified interest rate or time value of money), which could lead to distributions on hybrid equity escaping tax liability.
In terms of section 8E of the South African ITA, dividends paid in relation to hybrid equity instruments are re-classified as income in the hands of the recipient. Section 8E applies to hybrid equity instruments as defined. Amongst other requirements, this definition demands that the instrument must not be an equity share and must contain an obligation or option for redemption within three years. This requirement creates anomalies and restricts the ambit of the rules regulating hybrid equity. We think that shares redeemable at any stage should be classified as hybrid equity instruments. This corresponds to the Canadian approach to term preferred shares and taxable preferred shares, which, although subject to different rules, in principle attaches no time limit to the conversion or redemption of the hybrid equity instruments. Both short-term and long-term arrangements are targeted in Canada, and the characteristics of the instrument and extent of control of the investor are emphasised, while specific additional rules apply to short-term preferred shares. South Africa could learn much from Canada's approach. The removal of a time limit will clarify the perceived uncertainty concerning the time of the redemption and broaden the tax base to include both short-and long-term arrangements. This would enhance neutrality and horizontal equity and also align with the timing rules for hybrid debt instruments, which require continuous evaluation for each year of assessment.
In addition to hybrid equity instruments, distributions made in respect of a further category of hybrid instruments, third-party backed shares, are separately regulated in South Africa. If a share is defined as a third-party-backed share (a share with an enforcement right attached to it), a distribution made in relation to it is re-classified as income in South Africa. In Australia, the rules on non-equity shares would apply in respect of such an instrument. The Canadian approach is to regard distributions made in respect of shares with a guarantee against loss as taxable in principle. This is achieved by denying the inter-corporate dividend deduction. Similarly, the rules on taxable preferred shares, which could include an obligation to pay a return on the investment, impose tax liability for distributions on such shares in a manner similar to interest on debt instruments. Thus, although the detailed rules may differ, the basic principles in all three jurisdictions correspond. This makes sense as the substance of the investment agreement is closer to a debt instrument.
The South African rules applicable to distributions on third-party-backed shares pertain to "equity instruments". This concept includes preference shares only. We consider an even wider approach to be necessary, and that any share which includes a guarantee against loss or an enforceable right to claim a distribution attached to it should be subject to these rules. This would broaden the scope of the third-party-backed share rules significantly. Once again, South Africa could learn from the wider ambit of the Canadian inter-corporate dividend deduction and taxable preferred share rules.
Further, the exclusion from the third-party-backed share rules that apply to trusts, associations, non-profit organisations, and operating companies in the mining industry as well as listed companies, limits the scope of application of these rules and could be reconsidered. Such anomalies could be avoided if South Africa followed the Australian approach.
While the terminology and mechanisms differ, the specific rules on hybrid debt instruments achieve a similar goal in each jurisdiction. In Australia, returns on non-share equity instruments are taxable as non-share dividends, are included in assessable income and are frankable as part of the imputation system, and so taxed similarly to returns on regular equity instruments. Canada also taxes returns on hybrid debt instruments in the same way as other returns on equity instruments through a deemeddividend rule. Both of these approaches make sense as the substance of the instrument resembles equity despite its formal debt instrument label. In South Africa, the payment of hybrid interest or a distribution made in respect of a hybrid debt instrument is deemed to be a "dividend in specie" for the recipient. The company making the distribution is taxed as if interest had been paid. However, this interest is specifically disallowed as a corporate deduction, as is also the position in Australia and Canada.
In principle, the Canadian approach of taxing such a distribution as a deemed dividend is one we suggest South Africa adopt. We recommend that the phrase "dividend in specie" be replaced with "dividend". As the payment of interest is, in the main, an amount rather than an asset, we also recommend that a return on a hybrid debt instrument be treated as a deemed dividend. This will result in the tax liability falling onto the recipient, while the company would not qualify to deduct the distribution as interest – in other words, the normal tax treatment of a distribution of dividends in respect of equity shares. Following the Canadian approach would improve the clarity of the South African legislation and would also align the South African rules with those in Australia.
Further, to ensure that the payment of interest in the form of assets such as convertible notes or negotiable instruments is included in the deeming provision, we suggest that assets paid as "interest" be taxable as a distribution of an asset in specie. This would align the taxation of assets distributed in relation to hybrid debt instruments with that applicable to shares. It would also promote certainty and equity, as the tax implications would follow the substance rather than the form of the instrument.
It remains challenging to develop tax rules for distributions on the many possible variants of hybrid instruments. Shaviro and Messere state that the only sensible way of reforming tax legislation in this context is to apply a reactive piecemeal method that discourages specific transactions.179 This approach is evident from the tax legislation of Australia, Canada and South Africa, where rules were developed and adjusted from time to time to suit each jurisdiction's unique tax environment.
Despite their having differing corporate tax structures, the rules in Australia, Canada and South Africa perform a similar function of taxing distributions
179 Shaviro 2008 Financial Crisis 17-18; Messere Tax Policy in OECD Countries 332-333.
on hybrid instruments in accordance with their substance and not their form. This enhances certainty for both the taxpayer and the fiscus, conforming to this well-known maxim of taxation. As the SARS is faced with an economic crisis in South Africa and specific revenue collection targets to address the budget deficit, there is a risk that tax collection might become more aggressive in future. Taxpayers should therefore not be ignorant of the rules on the taxation of distributions in respect of hybrid instruments. Similarly, caution should be exercised before an investor is lured into investing in instruments or schemes that promote the possibility of escaping tax, no matter how lucrative the tax planning might seem at face value. The application of the specific rules in this context requires expert analysis, which could also significantly increase the costs of compliance for investors.
Unless investment in equity instruments is incentivised, taxpayers will continue using hybrid instruments in tax avoidance schemes and legislatures will respond by adjusting existing anti-avoidance measures. South Africa can learn two important lessons from Australia and Canada. First, noting the more prominent incentivising of equity investment in Australia and Canada, it should revisit its corporate tax structure to incentivise broad-based equity investment. Secondly, it should aim for a more robust approach to curbing the avoidance of the normal tax rules. In this regard, the comparative perspective indicates that Australian and Canadian principles such as the removal of time limits in classification rules and a broadening of the instruments to which the rules apply, would strengthen the current South African approach to the taxation of hybrid instruments.
Abbas et al Partial Race to the Bottom Abbas SMA et al A Partial Race to the Bottom: Corporate Tax Developments in Emerging and Developing Economies (International Monetary Fund Washington DC 2012)
Anon 2017 Taxgram Anon "Additional Tax Amendments in 2017" 2017 Taxgram 1-4
Bleiwas, Hutson and Kellough Taxation of Private Corporations Bleiwas P, Hutson J and Kellough H Taxation of Private Corporations and their Shareholders 4th ed (Canadian Tax Foundation Toronto 2010)
CCH Australian MTG CCH Australian Master Tax Guide 61st ed (CCH Australia Sydney 2017)
CCH Canadian MTG CCH Canadian Master Tax Guide 73rd ed (Wolters Kluwer Toronto 2018)
Clegg and Stretch Income Tax Clegg D and Stretch R Income Tax in South Africa 2018 ed (LexisNexis Online Durban 2018)
Cnossen 2015 Osgoode Hall LJ Cnossen S "What Kind of Corporation Tax Regime?" 2015 Osgoode Hall LJ 512-551
Da Silva 2015 Without Prejudice Da Silva D "Not All Hybrids are Cost Effective: Tax" 2015 Without Prejudice 23-24
De Koker and Williams Silke on SA Income Tax De Koker AP and Williams RC Silke on South African Income Tax 2019 ed (Lexis Nexis Online Durban 2019)
De Mooij 2015 Fiscal Studies De Mooij RA "Tax Biases to Debt Finance: Assessing the Problem, Finding Solutions" 2015 Fiscal Studies 489-512
De Wilde 2016 BIT De Wilde MF "Taxation of Multinational Enterprises in a Global Market: Moving to Corporate Tax 2.0?" 2016 BIT 182-187
Diamond 2010 NTJ Diamond JW "Corporate Debt and Taxes" 2010 NTJ 1-2
Duff and Loomer Taxation of Business Duff D and Loomer G Taxation of Business Organizations in Canada (LexisNexis Canada Toronto 2015)
Edgar 1990 CTJ Edgar T "The Classification of Corporate Securities for Income Tax Purposes" 1990 CTJ 1141-1188
Feldstein, Hines and Hubbard Effects of Taxation on Multinational Corporations Feldstein M, Hines JR (jnr) and Hubbard RG The Effects of Taxation on Multinational Corporations (University of Chicago Press Chicago 1995)
Friedlander Taxation of Corporate Finance Friedlander L Taxation of Corporate Finance (Carswell Thompson Reuters Toronto 2011)
Gilders et al Understanding Taxation Law Gilders F et al Understanding Taxation Law 2014 – An Interactive Approach 6th ed (LexisNexis Butterworths Chatswood 2014)
Harris 2010 BTR Harris PA "Cross-border Dividend Taxation in the 21st Century: The [Ir]relevance of Tax Treaties" 2010 BTR 573-588
Helminen Concept of Dividend Helminen M The International Tax Law Concept of Dividend 2nd ed (Kluwer Law International Alphen aan den Rijn 2010)
Joseph 2015 DFI Joseph A "Australia: BEPS, Hybrid Entities and Financing" 2015 DFI 1-10
Kahlenberg and Kopec 2016 WTJ Kahlenberg C and Kopec A "Hybrid Mismatch Arrangements – A Myth or a Problem that Still Exists?" 2016 WTJ 37-77
Kerr 1989 UT Fac L Rev Kerr HI "Can Dividend Tax Credits be linked to Corporate Level Tax" 1989 UT Fac L Rev 671-717
Krishna Income Tax Law Krishna V Income Tax Law 2nd ed (Irwin Law Inc Toronto 2012)
Kruger et al Tax Strategy Kruger D et al Bloomberg on Tax Strategy 5th ed (LexisNexis Durban 2012)
Martens-Weiner EU Company Tax Reform Martens-Weiner J Company Tax Reform in the European Union: Guidance from the United States and Canada on Implementing Formulary Apportionment in the EU (Springer New York 2006)
McIntyre Deduction of Interest Payments McIntyre MJ The Deduction of Interest Payments in an Ideal Tax on Realized Business Profits (Wayne State University Law School Detroit 2008)
Mckenzie 2006 CTJ Mckenzie KJ "Income Taxes, Integration and Income Trusts" 2006 CTJ 633
Messere Tax Policy in OECD Countries Messere K Tax Policy in OECD Countries: Choices and Conflicts (IBFD Publications Amsterdam 1993)
Mirrlees et al 2012 NTJ Mirrlees J et al "The Mirleess Review: A Proposal for Systematic Tax Reform" 2012 NTJ 655-684
Mirrlees et al Tax by Design Mirrlees J et al (eds) Tax by Design: The Mirrlees Review (Oxford University Press New York 2011)
Murphy 2016 AT Rev Murphy J "The Debt-equity Rules: A Continuing Experiment in Economic Substance" 2016 AT Rev 20-37
Oguttu 2011 SAYIL Oguttu A "Developing South Africa as a Gateway for Foreign Investment in Africa: A Critique of South Africa's Headquarter Company Regime" 2011 SAYIL 61-93
Oguttu Offshore Tax Avoidance Oguttu A International Tax Law: Offshore Tax Avoidance in South Africa (Juta Cape Town 2015)
Olivier and Honiball International Tax Olivier L and Honiball M International Tax: A South African Perspective 2011 5th ed (SiberInk Cape Town 2011)
Orow 2001 DFI Orow N "Reform of the Taxation of Financial Arrangements" 2001 DFI 320Rudnicki 2012 BTCLQ Rudnicki M "Dividends in Many Instances May no Longer be Exempt from Tax" 2012 BTCLQ 1-7
Rudnicki 2013 BTCLQ Rudnicki M "Recharacterization Rules for Dividend Income" 2013 BTCLQ
SARS Explanatory Memorandum 2013 SARS Explanatory Memorandum to the Revenue Laws Amendment Bill 2013 (SARS Pretoria 2013)
SARS Strategic Plan SARS Strategic Plan 2013/2014 – 2017/2018 (SARS Pretoria 2013)
Seligson 2011 BTCLQ Seligson M "The Ambit of Section 8E of the Income Tax Act: The Meaning and the Mischief" 2011 BTCLQ 1-9
Shaviro 2008 Financial Crisis Shaviro D The 2008 Financial Crisis: Implications for Income Tax Reform (New York University School of Law NYU Center for Law, Economics and Organization New York 2011)
Simon Optimal Debt Bias in Corporate Income Taxation Simon J Optimal Debt Bias in Corporate Income Taxation (Max Weber Programme European University Institute Badia Fiesolana 2012)
Stiglingh et al Silke: SA Income Tax 2018 Stiglingh M et al (eds) Silke: South African Income Tax 2018 ed (LexisNexis Durban 2018)
Stiglingh et al Silke: SA Income Tax 2020 Stiglingh M et al (eds) Silke: South African Income Tax 2020 ed (LexisNexis Durban 2020)
Sullivan Corporate Tax Reform Sullivan MA Corporate Tax Reform: Taxing Profits in the 21st Century (Apress Springer New York 2012)
Tanzi "Taxation of High Net worth Individuals" Tanzi V "Equity, Transparency, Cooperation and the Taxation of High Net worth Individuals" Unpublished paper presented at the Fourth International
Tax Dialogue Global Conference on Tax and Equality (7-9 December 2011 New Delhi)
Taylor "Australia" Taylor CJ Australia Chapter 12 in CCH Publication (IBFD Amsterdam 2014) 1-40
Taylor et al Taxation Law Taylor J et al Understanding Taxation Law 2018 10th ed (LexisNexis Butterworths Chatswood 2018)
Teixeira Taxing Corporate Profits Teixeira G Taxing Corporate Profits in the EU: A Comparison of the Portuguese, British and Dutch Systems (Kluwer Law International London 1997)
Thuronyi Tax Law Design Thuronyi V (ed) Tax Law Design and Drafting: Volume 2 (International Monetary Fund Washington DC 1998)
Tobias Taxation of Corporations Tobias N Taxation of Corporations, Partnerships and Trusts 4th ed (Carswell Thompson Reuters Toronto 2013)
Twite 2001 Int Rev Finance Twite G "Capital Structure Choices and Taxes: Evidence from the Australian Dividend Imputation Tax System" 2001 Int Rev Finance 217-234
Van der Zwan "Investment" Van der Zwan P "Investment and funding instruments" in Stiglingh M et al (eds) Silke: South African Income Tax 2020 ed (LexisNexis Durban 2020) 525-573
Van der Zwan "Companies" Van der Zwan P "Companies and dividends tax" in Stiglingh M et al (eds) Silke: South African Income Tax 2020 ed (LexisNexis Durban 2020) 691734
West and West "Debt-Equity Conundrum" West C and West D "The Debt-Equity Conundrum" in Brown P (ed) Cahiers de Droit Fiscal International Vol 97b (Sdu The Hague 2012) 633-648
Case law
Mills v Commissioner of Taxation 2012 HCA 51
Citibank Canada v R 2001 CanLII 592 (TCC)
CP Loewen Enterprises Ltd v Minister of National Revenue 1993 1 CTC 2153 Doris Trucking Company Limited v Minister of National Revenue 1968 2 Ex
CR 501 Esplen v R 1996 DTC 1272 (TCC) Jordan's Rugs Ltd v Minister of National Revenue 1969 CTC 405 McAllister Drilling Ltd v R 1994 2 CTC 211
CIR v Delfos 1933 AD 242 CIR v Hullet Aluminium (Pty) Ltd 62 SATC 483 ITC 66 SATC 125
Legislation
Income Tax Act, 1986 Income Tax Assessment Act, 1936 Income Tax Assessment Act, 1997
Canada
Income Tax Act, 1985
Banks Act 94 of 1990
Income Tax Act 58 of 1962
Long-Term Insurance Act 52 of 1998
Short-Term Insurance Act 53 of 1998
Tax Administration Act 28 of 2011
Taxation Laws Amendment Act 34 of 2019
Davis Tax Committee 2018 https://www.taxcom.org.za/docs/20180411%20 Final%20DTC%20CIT%20Report%20-%20to%20Minister.pdf Davis Tax Committee 2018 Report of the Efficiency of South Africa's Corporate Income Tax System https://www.taxcom.org.za/docs/20180411 %20Final%20DTC%20CIT%20Report%20-%20to%20Minister.pdf accessed 30 September 2020
Government of Canada 2020 https://www.canada.ca/en/revenueagency/services/tax/individuals/topics/about-your-tax-return/taxreturn/completing-a-tax-return/deductions-credits-expenses/line-40425federal-dividend-tax-credit.html Government of Canada 2020 Line 40425 -Federal Dividend Tax Credit https://www.canada.ca/en/revenue-agency/services/tax/individuals/topics/ about-your-tax-return/tax-return/completing-a-tax-return/deductionscredits-expenses/line-40425-federal-dividend-tax-credit.html accessed 30 September 2020
National Treasury 2007 http://www.treasury.gov.za/public% 20comments/STC%20Discussion%20Document%20%2020%%20 National Treasury 2007 Dividends Versus Return of Capital: Revising the Tax Base for Taxable Distributions -Discussion Document
http://www.treasury.gov.za/public%20comments/STC%20Discussion%20 Document%20%2020%%20 accessed 27 January 2018
OECD 2013 http://www.oecd.org/ctp/BEPSActionPlan.pdf OECD 2013 OECD Action Plan on Base Erosion and Profit Shifting http://www.oecd.org/ctp/BEPSActionPlan.pdf accessed 16 February 2017 Ontario Ministry of Finance 2019 https://www.fin.gov.on.ca/ en/credit/dtc/index.html Ontario Ministry of Finance 2019 Ontario Dividend Tax Credit https://www.fin.gov.on.ca/en/credit/dtc/index.html accessed 30 September 2020
AT Rev Australian Tax Review BTCLQ Business Tax and Company Law Quarterly
| BIFD | Bulletin | for | International | Fiscal |
| Documentation | ||||
| BIT | Bulletin for International Taxation | |||
| BTR | British Tax Review | |||
| CTJ | Canadian Tax Journal | |||
| CRA | Canada Revenue Agency |
DFI Derivatives and Financial Instruments GAAR General Anti-Avoidance Rule IFA International Fiscal Association Int Rev Finance International Review of Finance ITA Income Tax Act 58 of 1962 ITAA 1936 Income Tax Assessment Act 1936 ITAA 1997 Income Tax Assessment Act 1997 MTG Master Tax Guide NTJ National Tax Journal OECD Organisation for Economic Co-operation and
Development Osgoode Hall LJ Osgoode Hall Law Journal REITS Real Estate Investment Trusts SARS South African Revenue Service SAYIL South African Yearbook on International Law TAA Tax Administration Act 28 of 2011 UT Fac L Rev University of Toronto Faculty of Law Review WTJ World Tax Journal