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Debentures are a common method for companies to raise debt, but there remains ambiguity regarding the taxation of certain income earned from them.
One such issue is the taxation of the premium received on the redemption of debentures. This ambiguity arises because a taxable transfer under the Income-tax Act, 1961 (IT Act) includes the relinquishment of an asset or the extinguishment of any rights therein.
Taxpayers argue that redemption premiums should be taxed as capital gains since they are payments received upon the extinguishment of a capital asset (i.e., debentures).
However, the term ‘interest’ is broadly defined to include any income earned from borrowed money or incurred debt. Consequently, it may be argued that redemption premiums, being income from a debt instrument, should be taxed as interest income.
Recently, the Mumbai Income Tax Appellate Tribunal (ITAT) in Khushaal C. Thackersey v. Assistant Commissioner of Income-tax adjudicated on this issue, holding that the premium received upon redemption of Non-Convertible Debentures (NCDs) is not capital gains but interest, taxable under the head “income from other sources.”
In this case, the taxpayer, an Indian tax resident, purchased NCDs issued by an Indian company from nationalized banks.
These NCDs offered a 0% interest rate but were redeemable at a premium. Upon maturity, the taxpayer received the face value plus the premium from the company.
The taxpayer computed long-term capital gains by subtracting the cost of acquisition from the maturity proceeds, aiming to benefit from the favorable 20% tax rate (plus surcharge and cess) available for long-term capital gains, compared to interest, which is taxed at rates up to 30% (plus surcharge and cess).
The taxpayer also attempted to claim an exemption on the capital gains earned.
Upon assessment, the tax officer determined that the gain received on redemption of NCDs was interest income, assessable under “income from other sources,” and recomputed the tax liability.
This decision was upheld by the first appellate authority under the IT Act.
The taxpayer appealed to the Mumbai ITAT.
The taxpayer argued that debentures are ‘capital assets’ and their extinguishment constitutes a taxable transfer under the IT Act.
The taxpayer cited precedents where redemption of preference shares and capital investment bonds were considered “transfers” under the IT Act, qualifying for capital gains treatment.
Additionally, the taxpayer referenced Section 50AA, which deems gains from transfer, redemption, or maturity of Market Linked Debentures (MLD) taxable as capital gains, indicating that redemption of debentures constitutes a taxable transfer.
The tax authorities countered that NCDs are debt instruments, and the premium received on redemption is interest income.
They relied on Bennett Coleman & Co. Ltd, where it was held that premium received on redemption of debentures is taxable under “income from other sources.”
The tax authorities also referred to Circular 2/2005, which clarifies that the difference between redemption price and purchase cost of deep discount bonds by intermediate purchasers is taxable as interest or business income.
The Mumbai ITAT ruled in favor of the tax authorities, holding that the premium on redemption of debentures is taxable as interest income. The ITAT observed that the discount on deep discount bonds (DDBs) is similar to the premium paid on the redemption of NCDs, as both are debt instruments, and the discount/premium is determined by applying a specific interest rate.
The ITAT noted that for Market Linked Debentures (MLDs), the interest rate is not determined at issuance, but the return depends on the performance of an underlying market index or instrument, making MLDs materially different from NCDs. Hence, no support could be drawn from Section 50AA in the taxpayer’s argument.
The ITAT further distinguished between debentures and preference shares/capital investment bonds, noting that the latter carry additional rights, such as the right to receive surplus on liquidation, which are absent in debentures. Thus, the cases cited by the taxpayer regarding taxable transfers involving an ‘extinguishment’ were deemed not applicable to the present facts.
The ITAT concluded that the redemption of NCDs at face value by the issuer does not give rise to capital gains but merely constitutes the realization of money advanced by a creditor. Consequently, any premium received is considered interest income.
This ITAT judgment upholds the principle that the premium received on the redemption of NCDs is generally taxable as interest under the head ‘income from other sources.’
However, it is important to note that the judgment dealt with a specific scenario where NCDs were issued at 0% interest in lieu of an outstanding debt obligation.
Other scenarios, such as a buyback of interest-bearing NCDs before maturity, could be treated differently. In such cases, if the investor relinquishes the right to receive future interest for a one-time payment, it might be considered an ‘extinguishment of rights,’ potentially triggering capital gains tax implications.
Therefore, it is crucial to analyze the impact of this ruling based on the specific facts and relevant tax principles of each case.
The ITAT judgment in the Khushaal C. Thackersey case provides valuable clarity on the tax treatment of premium received on NCDs, ruling it as interest income rather than capital gains.
However, the applicability of the principles highlighted will need to be tested against the complexities of individual cases.
If you have any queries on this article on the taxation of premium on redemption of debentures, or Indian tax matters in general, then please get in touch.
Businesses that engage self-employed contractors, consultants, and freelancers should now reassess their commercial arrangements to ensure they meet the requirements for tax and employment purposes.
In May 2024, the Irish Revenue Commissioners released a guidance note detailing the factors to be considered in determining employment status for tax purposes. This guidance, while focused on tax law, also impacts employment and social welfare considerations.
The European Parliament adopted the Platform Work Directive on April 24, 2024, introducing a presumption of employment for certain workers in platform work activities.
This legislative change underscores the ongoing importance of accurately determining employment status in both the gig economy and broader business contexts.
The new guidance follows a landmark decision by the Irish Supreme Court in October 2023, in The Revenue Commissioners v. Karshan (Midlands) Limited t/a Domino’s Pizza [2023] IESC 24.
We have covered this case previously on Tax Natives.
This case involved delivery drivers and fundamentally altered the analysis of employment contracts to determine whether an individual is an employee or self-employed.
The ruling has significant implications for businesses engaging individuals for personal services, whether as independent contractors, consultants, or freelancers.
The Supreme Court established five key tests to determine employment status, which the Revenue Commissioners’ guidance now elaborates on with practical examples from various sectors, including construction, IT, and professional services.
This test examines if there is an agreed rate for services provided, whether hourly, daily, or linked to specific deliverables. The nature and arrangement of any payment are crucial factors.
This test differentiates between individuals providing services personally and those who can delegate the work to others.
The level of control the contractor has over how the work is performed is a fundamental factor. The presence of control is also critical under the Platform Directive for determining employment status.
After passing the first three tests, all facts and circumstances of the relationship must be considered, including:
The specific wording of relevant statutory regimes or legislation must be considered, as different laws may confer different rights.
For example, being taxed under the PAYE system does not automatically grant employment rights.
The Supreme Court’s decision and the Revenue guidance note clarify that transferring between taxing regimes for a tax benefit does not constitute abusive tax avoidance. Structuring one’s affairs to fall within a particular regime is considered legitimate.
Businesses must now proactively review their commercial arrangements with self-employed workers. The guidance note provides detailed examples to help businesses apply these tests in various scenarios.
The Supreme Court ruling specifically addresses the Taxes Consolidation Act 1997 and does not automatically apply to other areas of law. The Revenue Commissioners emphasize ongoing engagement with government departments responsible for employment and social welfare status to ensure consistent application across different legal contexts.
The Supreme Court case and the Revenue Commissioners’ new guidance significantly impact how businesses should classify their self-employed contractors.
Businesses are advised to review and possibly restructure their current arrangements to ensure compliance with the updated requirements for tax and employment purposes.
If you have any queries about this article the Guidance Issued on Employment Status, or Irish tax matters in general, then please get in touch.
In a landmark decision on 8 March, the Full Federal Court (FFC) sided with the taxpayer, Minerva Financial Group Pty Ltd, against the Commissioner of Taxation, clarifying the application of general anti-avoidance rules within Part IVA of the Income Tax Assessment Act 1936.
This ruling underscores the nuanced interpretation of Part IVA, particularly concerning discretionary distributions by trustees, and marks a significant victory for taxpayers navigating the complexities of tax law.
The court’s decision offers several crucial insights into Part IVA’s operation:
Taxpayers are reminded of the importance of documenting the reasons behind their arrangements. While Part IVA’s test is objective, understanding the context can help determine the dominant purpose.
It’s essential to consider all eight factors outlined in section 177D(2) collectively, rather than in isolation, to ascertain a scheme’s dominant purpose.
Part IVA does not merely assess if a different course of action would have been taken without the tax benefit, emphasizing that a dominant purpose of obtaining a tax benefit must involve more substantive evidence.
Transactions within a commonly owned group, even if they involve intra-group loan account entries instead of cash transfers, are not inherently indicative of a scheme’s dominant purpose to secure a tax benefit.
The FFC’s ruling further clarified the legality of certain structures and practices:
The case centered around the Liberty group’s restructuring into corporate and trust silos, aimed at optimizing for an IPO.
This restructure led to significant profits being distributed in a way that incurred a lower withholding tax rate, prompting the Commissioner to apply Part IVA, suggesting these distributions were primarily for tax avoidance.
The FFC meticulously dissected the application of Part IVA, focusing on the intent behind the distributions and the structure of the Liberty group.
The court’s analysis, particularly on how the scheme was executed and the financial implications for the involved entities, led to a conclusion that favored the taxpayer.
The decision stresses that the presence of a tax benefit alone is insufficient to prove a dominant purpose of tax avoidance.
This ruling is a pivotal moment for taxpayers and legal practitioners, offering clarity on Part IVA’s interpretation and its application to complex financial structures and distributions.
It serves as a reminder of the critical balance between tax planning and avoidance, reinforcing the need for a comprehensive evaluation of arrangements under the lens of tax law.
The victory of Minerva Financial Group in this case not only provides a roadmap for similar cases but also reassures taxpayers that legitimate business arrangements, even those resulting in tax benefits, can withstand scrutiny under Australia’s general anti-avoidance rules.
If you have any queries about the Minerva case, or any other Australian tax matter, then please get in touch.
In a significant ruling, the Upper Tribunal (UT) has upheld a penalty against Kevin John Pitt for failing to take corrective action in response to a follower notice (FN) issued by HM Revenue and Customs (HMRC).
The case, referred to as K Pitt v HMRC [2024] UKUT 21 (TCC), serves as a critical reminder of the stringent requirements imposed by HMRC concerning tax compliance.
HMRC issued a follower notice to Mr. Pitt in 2016, based on the judicial ruling in Audley v HMRC [2011] UKFTT.
The FN identified that the tax avoidance arrangements Mr. Pitt had entered into, which involved the acquisition and disposal of loan notes and claimed a loss of £694,684, were similar to those previously ruled on.
HMRC contended that these arrangements did not warrant the claimed tax relief of £278,557.60.
When Mr. Pitt failed to amend his tax returns in line with the FN, HMRC subsequently imposed a penalty amounting to £83,547. This penalty was calculated based on a percentage of the tax advantage that had been incorrectly claimed.
Mr. Pitt challenged both the closure notice that denied his loss relief claim and the penalty at the First-tier Tribunal (FTT), but was unsuccessful.
He then escalated the challenge concerning the penalty to the UT, arguing that the FTT had erred by comparing evaluative conclusions and inferences rather than the primary facts of the Audley case.
The UT dismissed the appeal, affirming that the legislative intent required an analysis that extends beyond mere primary facts to include evaluative conclusions and inferences.
This approach aligns with the Ramsay principle, which advocates for a realistic view of facts in light of the legislative purpose.
The UT clarified that reconstituted facts, when construed purposively and realistically, are indeed facts and must be treated as such in the assessment of follower notices.
This ruling underscores the effectiveness and reach of the FN regime beyond just mass-marketed tax avoidance schemes.
It highlights the necessity for taxpayers to adhere strictly to the directives specified in FNs, especially when prior judicial rulings clearly delineate the bounds of permissible tax relief claims.
The decision of the UT provides crucial insights into the interpretation and application of laws related to follower notices and corrective actions.
While FNs have been controversial since their introduction about ten years ago, the UT’s detailed narrative and analysis offer valuable guidance for taxpayers who might find themselves subject to such notices.
The ongoing legal narrative around FNs and the responsibilities they place on taxpayers continue to evolve, and this decision is a pivotal addition to the existing body of case law.
Taxpayers and tax professionals alike should note the implications of this ruling, as it not only affirms the breadth of the FN regime but also reinforces the need for compliance with its requirements.
If you have any queries about this article on Upper Tribunal Upholds Follower Notice Penalty, or UK tax matters more generally, then please get in touch.