BIM72660 - Partnerships: loss relief restrictions: cost of contribution financed by loan
Where the cost of a partner’s capital contribution is financed in part or whole by a loan, the contribution is excluded from being a relevant capital contribution if:
- an agreement or arrangement exists whereby the cost of repaying the loan will or may be borne, or ultimately borne, by another person, or
- the cost of repaying the loan is borne, or ultimately borne, by another person, or
- the liability to repay the loan is assumed by someone else, or is released (written off), or
- the cost incurred in repaying the loan, taken over any period of 5 years beginning on or after 2 December 2004, is substantially less than it would be under arm’s length repayment terms with a bank.
A loan for this purpose includes not just the immediate loan to finance the contribution, but also any replacement loan or loans.
Condition 1
For Condition 1 to apply it is sufficient if any kind of
arrangements are in place where someone else may bear the cost of
repaying the loan. Many avoidance schemes have options or
guarantees that may be exercised or come into play in certain
circumstances.
Normal commercial arrangements where a person takes out
insurance on commercial terms to cover loan repayments in the event
of an unlikely or unforeseen event (such as long term illness) are
not within Condition 1. In these circumstances the person taking
out the insurance is effectively covering the cost of repayment
themselves.
Where Condition 1 applies the amount of the contribution
financed by such a loan is excluded from the time that the
agreement or arrangement first exists.
Conditions 2 and 3
Conditions 2 and 3 are simple factual tests which are satisfied when:
- the cost of repaying the loan is borne, or ultimately borne, by another person, or
- the liability to repay the loan is assumed by someone else, or is released.
There is no need to establish any arrangements or agreements for
conditions 2 and 3 to apply. Assumption or release of a loan here
does not require formal legal documentation – the test is a
practical one of what has actually happened.
Where Conditions 2 and 3 apply the amount of the contribution
financed by such a loan is excluded from the time that the factual
tests are satisfied.
Condition 4
Condition 4 applies to loans which are legally repayable on full
recourse terms, but in practice are not. It only applies where the
cost incurred in repaying the loan, taken over
any period of 5 years (beginning after 2 December
2004), is
substantially less than it would be under
arm’s length repayment terms with a bank.
All of the terms of a loan should be considered including
rates of interest and the period of the loan, but remembering that
the focus is on the actual repayment terms. Although the test is
over 5 years, it may also be relevant to consider the terms of the
loan over a longer period.
Where Condition 4 applies, the amount of the capital of the
loan outstanding at the end of the relevant 5 year period is
excluded from being a capital contribution from that time.
