The Taxation of Inter-company Loans
Under the right circumstances, which can of course be shaped, intercompany loans are an effective means of funding further profit or not-for-profit motives. Consider Mr Trader, who is director and sole shareholder of Company T, a trading company. Company T has grown with accumulated profits in excess of £2m, matched by substantial cash balances. Mr Trader has decided to set up a not-for-profit organisation, ReMobly Ltd, aimed at rehabilitating injured athletes back into competitive sport. In addition to Mr Trader, two other directors will be appointed to the board of ReMobly Ltd and each of the three persons will own 33% of the ReMobly Ltd share capital.
ReMobly Ltd is seeking to raise capital to begin its operations and Mr Trader is considering the most apt means of lending money to the not-for-profit organisation. There are three issues which spring to mind…
Loans to participators
In view of the large cash balances that have accumulated in the company, Mr Trader considers lending money from Company T to ReMobly Ltd. CTA10/S455 applies to loans/advances made by a close company to its participator, or an associate of its participator. Broadly, where a close company makes any loan to an individual who is a participator (or an associate of a participator) in the close company, then the close company is due to pay tax under CTA10/S455. The not-for-profit is not classed as an associate of Mr Trader (so far as section 448 of Part 10 of the Corporation Tax Act 2010 is concerned), therefore the loan can be made by Company T without corporation tax implications under CTA10/S455.
It is also important to analyse CTA10/S459, which applies if there are arrangements made by a person whereby a close company makes a loan or advance that is not subject to tax under CTA10/S455, and another person makes a payment to a relevant person who is either a participator of the company or an associate of such a participator. In this case there is a proposed “loan or advance” from a close company. However, there is not then a payment by a person other than Company T to a relevant person who is a participator in Company T or is an associate of such a participator. Indeed ReMobly Ltd is not a relevant person who is an associate of Mr Trader, because a relevant person has to be an individual or a company acting in a fiduciary or representative capacity (CTA10/S455(6)). Therefore the loan can be made without corporation tax implications under CTA10/S459.
Loan write off
There is a possibility that the future activities of ReMobly Ltd will be inadequate to allow for the repayment of the loan made by Company T, under the terms of the loan agreement. If both parties are companies and both are found to be under the common control of another person, company or individual, at any time in the accounting period, then no bad debt relief will be available on the release of the loan, and no taxable credit will arise to the company whose indebtedness is forgiven. Company T and ReMobly Ltd are not under the common control of another person and are therefore not considered to be connected. The debit for the loan write off will be allowable for Company T (most likely as a non-trade loan relationship deficit). The corollary is that a taxable credit will arise to the not-for-profit.
Anti-avoidance
The main anti-avoidance rule will also need to be considered in FA 1996, Sch 9 para 13, the ‘unallowable purposes’ rule. This will deny relief for so much of a debit where the loan or part of the loan is attributable to an unallowable purpose. An unallowable purpose is any purpose which is not amongst the business or other commercial purposes of the company, Company T. If taken literally, this would seem to be cast fairly widely. In general however, if the loan relationship rules are seen to be fairly applied to both parties, HMRC seem content in leaving matters undisturbed.
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