He now has an offer for his shares and wants to know the tax implications of waiving his loan, because the purchaser would like to buy the company without the outstanding loan?“
The injection of funds by the director is a loan relationship for the company because it arose from the lending of money. In relation to a company’s loan relationships, CTA 2009, section 307(2) stipulates that for tax purposes, the amounts to be brought into account by a company as credits and debits for any period are those that are recognised in determining the company’s profit or loss for the period in accordance with generally accepted accounting practice (GAAP).
The debits and credits are classified in the tax computation based on whether the loan has a trading purpose or a non-trading purpose. As the money was lent to generate trading income, the credit will be treated as arising from a trading loan relationship.
Tax implications for the director:
The waiver will not be an allowable capital loss for the director, being the original creditor in respect of the loan, in accordance with TCGA 1992, section 251 (1) which provides the general rule that gains are exempt, and losses are not allowable for capital gains tax purposes.
The special relief for loan to traders available under TCGA 1992, section 253, does not apply in this situation because the loan has not become irrecoverable, which is a strict requirement of section 253. HMRC have provided some examples of when a loan is considered irrecoverable in their manuals at CG65930P starting at CG65950.
Alternatives
Instead of waiving the loan, it could be assigned for consideration to the purchaser of the shares with their agreement. There would be no loan relationship issues for the company as it still has the same debt but now owed to a different person.
The assignment of the loan to the purchaser would be exempt from capital gains tax owing to s251 TCGA 1992.
The director could enter into a debt for equity exchange with the company whereby the loan is converted into additional shares before the increased shareholding is then sold. This should meet the requirements of s322(4) CTA 2009 (see CFM33200) which should ensure that there is no taxable loan relationship credit as a result of the conversion.
