ATO ID 2002/861: Whether repayment of monies loaned by Government to the taxpayer will be an allowable deduction?
Date of decision: 30 November 2001
Year of income: 31 December 2001
Business line: Public Groups and International

Issue
Whether funds applied by a Co-operative company towards the repayment of monies loaned by the government will be an allowable deduction under paragraph 120(1)(c) of the Income Tax Assessment Act 1936 ('ITAA 1936')?

Decision
Yes. Repayment of monies loaned to a co-operative company by the government will be an allowable deduction under paragraph 120(1)(c) ITAA 1936. The application of the monies must occur within the year in respect of which the deduction is claimed. Any repayments in excess of the total assessable income of the year in which they are made would not be an allowable deduction.

Facts
A co-operative company entered into a loan facility with the government to fund capital works . The co-operative company plans to apply assessable income from its activities for repayment of the monies loaned by the government. Under the terms of the facility letter, the government has consented to the prepayment of the principal of the loan on the condition that the co-operative company provide an auditor's certificate as to the solvency of the co-operative company at the time of each payment.

Reasons for decision
Summary: Paragraph 120(1)(c) (ITAA 1936) states as follows: '[Bonuses, dividends etc allowable deductions] So much of the assessable income of a co-operative company as: (a) ... (b) ... (c) in the case of a company having as its primary object that specified in paragraph 117(1)(b)-is applied by the company for or towards the repayment of monies loaned to the company by a government of the Commonwealth or a State to enable the company to acquire assets which are required for the purpose of carrying on the business of the company or to pay that government for assets so required which the company has taken over from that government; To be defined as a co-operative company for the benefit of the deduction, the company will need to fulfil the requirements of section 117 ITAA 1936 , which defines a co-operative, and section 118 ITAA 1936 , which describes the circumstances in which a co-operative will not be treated as a co-operative company in a particular year of income. Sub-section 117(1) ITAA 1936 defines a co-operative as: ' ...a company... the rules of which limit the number of shares which may be held by, or by and on behalf of, any one shareholder, and prohibit the quotation of the shares for sale or purchase at any stock exchange or in any other public manner whatever...and which in either case is established for the purpose of carrying on any business having as its primary object or objects one or more of the following: (a) ... (b) the acquisition of commodities or animals from its shareholders for disposal or distribution...' Section 118 ITAA 1936 deems a co-operative company not to be a co-operative company for a year of income if: '...the value of the commodities and animals disposed of to, or acquired from, its shareholders by the company...is less respectively than 90% of the total value of commodities and animals disposed of or acquired by the company...that company shall in respect of that year be deemed not to be a co-operative company.' The co-operative company satisfies the requirements of section 117 ITAA 1936 and section 118 ITAA 1936. Repayment of monies loaned to the co-operative company will be an allowable deduction under paragraph 120(1)(c).

Legislative references: Income Tax Assessment Act 1936 Paragraph 120(1)(c) Section 117 Section 118
Subject references: Co-operatives Borrowings & loans