Deduction of tax: qualifying private placements: the regulations: the relevant debtor
The regulations: the relevant debtor
The ‘relevant debtor’ within the Qualifying Private Placement Regulations is the company that ultimately stands in the position of debtor in respect of the money lent by the creditor. Where there is a chain of companies through which the interest is paid, the legislation regards the debtor as the company that has borrowed the money on its own account, not any intermediary through whom the payment is made.
Regulation 3 imposes further conditions in relation to the debtor.
The debtor must hold a creditor certificate
The relevant debtor must hold a creditor certificate for each creditor to be paid gross at the time each interest payment is made. A private placement can be made up of more than one security. In order for an individual security to qualify for the exemption, the debtor needs a certificate for each creditor under that security, but not necessarily for each creditor under the private placement as a whole.
Where a placement is issued to more than one creditor, some may provide a certificate while others do not. If the debtor holds certificates from all the creditors in relation to a particular security (and the other conditions are met), interest on that security may be paid gross even though the placement also includes securities for which certificates are not held.
The debtor and the creditor must not be connected
The debtor must reasonably believe that it is not connected to the creditor. ‘Connected’ here takes its meaning from ITA07/S993.
The security must be entered into for commercial reasons
The debtor must enter into the security for genuine commercial reasons and not as part of a ‘tax advantage scheme’. A tax advantage scheme is a scheme that has as its main purpose or one of its main purposes, the obtaining of a tax advantage within CTA10/S1139 – that is avoiding or reducing a tax charge.
In keeping with similar legislative provisions elsewhere, the regulations do not define what is meant by ‘main purpose’ or ‘one of the main purposes’ or what is meant by ‘genuine commercial reasons’. These expressions are to be given their normal meaning as ordinary English words. They have to be applied objectively, having regard to the full context and facts. The rule can apply where a company seeks to use the exemption as part of wider tax avoidance arrangements.