CHAPTER 5
INTEREST ON LOAN RAISED TO BUY MEMBERS INTEREST IN A CLOSE CORPORATION OR SHARES IN A COMPANY
5.2 Natal Laeveld Boerdery CC vs CIR (60 SATC 81)
The taxpayer, Natal Laeveld Boerdery CC carried on farming operations on its farm, Roosmaryn, near Komatipoort. Van Dyk and Van Veyeren, the only members of the corporation, had equal interests in the taxpayer until September 1987. Van Dyk managed the farming activities while Van Veyeren acted in an advisory capacity. Van Veyeren later became less involved in the management of the affairs of the corporation.
Van Dyk then began planting bananas on Roosmaryn. He also caused the taxpayer to transport sugar cane for other farmers for a fee in order to increase the corporation's income. These activities led to dissatisfaction on the part of Van Veyeren, mainly on the ground that banana farming was too risky and that the transport business would make inroads into the taxpayer's farming activity. This led to disputes and eventually an agreement was concluded wherein the taxpayer bought Van Veyeren's interest for R1,8 million. This resulted in Van Dyk becoming the only member of the taxpayer. The taxpayer, however, did not have the funds to pay the purchase price to Van Veyeren. The corporation therefore borrowed R2,3 million from a Syfrets and registered a bond over Roosmaryn as security. The proceeds of this loan were used to payoff its debt of R442 500 to First National Bank and the balance was utilized to pay Van Veyeren.
In its returns of income for the 1988, 1989 and 1990 years of assessment, the taxpayer claimed interest payments paid to Syfrets as a deduction against its income.
The Commissioner refused to allow the interest deductions on the grounds that it had not been incurred in the production of the taxpayer's income. The taxpayer then appealed to the Special Income Tax Court. This appeal was unsuccessful. It thereafter made an unsuccessful appeal to the Supreme Court of the Transvaal Provincial Division resulting in an appeal to the Appellate Division of the Supreme Court.
The taxpayer contended that the previous courts had erred in not distinguishing between the purpose for which the Syfrets loan was concluded and the how that purpose was achieved. The purpose was to place it in a position to expand its farming operations and consequently to increase its income. The method had been the elimination of Van Veyeren's interest, who was a stumbling block in the achievement of that purpose.
Van Heerden DCJ, who delivered the judgement in the Appellate Division, noted that the primary criterion in the determination of the question was whether section 11 (a) did apply and at the same time whether section 23 (g) did not apply.
If the deductibility of interest payable on a loan was in question, regard must be had primarily to the purpose for which the money was borrowed and that purpose, according to section 23 (g), had to be to produce income for the taxpayer.
This case was decided on the 'negative test' which required the purpose of the expenditure to be 'wholly or exclusively' laid out for the purposes of trade. Any
attempt to draw a distinction between Van Dyk's purpose and the method of its attainment was untenable. Van Dyk had a primary and secondary aim for the taxpayer. The primary aim was to remove Van Veyeren and in so doing to become the sole member of the taxpayer. The secondary aim was, as sole member, to proceed with farming activities of the taxpayer without any hindrance.
The court was also of the view, that in order to determine the taxpayer's aims, attention had to be paid to the dispositions of both Van Dyk and Van Veyeren. Van Dyk wanted to get rid of Van Veyeren in order to plan the taxpayer's farming. A loan in order to buy Van Veyeren out was the means to achieve this. The welfare of the taxpayer after his interest had been purchased could obviously not have been of any importance to Van Veyeren as his co-operation in securing the loan was attributable to one aim only, that is, to receive payment for his interest in the taxpayer. Van Veyeren's aim was not to place the taxpayer in the position to increase its income potential.
In so far as there was a joint purpose of the two members, it was only to reach the position where, by concluding the loan, Van Veyeren would disappear from the scene and Van Dyk would become the only member of the taxpayer. Accordingly, the interest expenditure was not deductible in terms of section 11 (a) read with section 23 (g) of the Income Tax Act. The appeal was therefore dismissed.
The taxpayer's reliance on CIR v Drakensberg Garden Hotel (Pty) Ltd (supra) was misplaced. Not only were the facts totally different from those in this appeal but the
Special Court in that case had made a factual finding regarding the purpose for which the relevant transaction was concluded. It was held that the interest on the purchase price of the shares was correctly deducted on the basis that the purpose in buying the shares was to ensure a continuance of the taxpayer's income from subletting and trading. The acquisition of the shares was the only realistic way in which the taxpayer could adequately protect its interests and there was therefore a sufficiently close connection between the purchase of the shares and the production of income.
This case was decided on the 'negative test' which required the purpose of the expenditure to be 'wholly or exclusively' for trade. The 'negative test' no longer applies and the expenditure is now not deductible 'to the extent to which such monies were not laid out or expended for the purposes of trade.' It follows therefore, that on the same set of facts a court might now come to a different conclusion (Tsatsawane, 2002:3).
Williams (1999: 230) is of the opinion that this case involved a straightforward situation of a close corporation borrowing money for the purpose of removing an obstacle to become more profitable and the interest, therefore, should have been allowed as a deduction. He pointed out that recent English decisions have recognized the deductibility of expenditure incurred for such a purpose and quoted as an example, Lawson v Johnson Matthey Pic [1992] 2 AC 324 (HC); [1992] 2 All ER 647 (HL). He therefore, considered the decision of the Supreme Court of Appeal surprising, and that it was unlikely to have any adverse impact on our tax
jurisprudence, as it rested on a "quirky" finding of fact, in relation to the taxpayer's purpose in taking out the loan.
Meyerowitz et al (1998:58) are of the opinion that an interesting aspect of the judgement was its reference to the intention of the members of a close corporation.
In so far as the intention of its members was to be imputed to the close corporation, the judgement pointed out that at the time of the decision to borrow, both Van Veyeren and Van Dyk were members of the taxpayer and Van Veyeren's purpose in agreeing to the loan was simply to be paid for his interest. It was not to put the taxpayer in a position to increase its income.
Haupt and Huxham (1998:24) expressed surprise that the appellant was prepared to go to the expense of an appeal through the courts on a matter which had only the slimmest chance of success. They believe that the Judge had little difficulty in agreeing with the decisions of the lower courts. However, they noted that the aim of the member was regarded as being the aim of the appellant and this they believe may not necessarily be correct. Atypical case in this regard is ITC 1602 (supra).