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HMRC internal manual

Business Income Manual

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Partnerships - loss relief restrictions: cost of contribution financed by loan

Reg4 Partnerships (Restrictions on Contributions to a Trade) Regulations 2005, SI 2005 No 2017

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 capital contribution for the purpose of the restrictions on sideways loss relief if:

  1. an agreement or arrangement exists whereby the cost of repaying the loan will or may be borne, or ultimately borne, by another person, or
  2. the cost of repaying the loan is borne, or ultimately borne, by another person, or
  3. the liability to repay the loan is assumed by someone else, or is released (written off), or
  4. the cost incurred in repaying the loan, taken over any period of five 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.

The application of this legislation was considered in Samarkand Film Partnership No 3 v HMRC [2012] UKFTT610 (TC).

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 five years, 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 five 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 five year period is excluded from being a capital contribution from that time.