Repurchase of preference shares

Background

The applicant was a public company listed on the Johannesburg Stock Exchange (JSE) which issued preference shares to certain persons.

The shares:

• were issued at a par value;
• were not redeemable;
• were non-participating; and
• confer on members the right to a return of capital on the winding up of the applicant equal to the issue price of the shares.

The applicant decided to repurchase the shares at their current market value (as traded on the JSE). The purchase price would be less than the issue price. SARS made various rulings in respect of the transaction.

Hybrid equity instruments

First, SARS ruled that the preference shares do not constitute ‘equity shares’ as defined in Section 1 of the Income Tax Act(1). For a share to be an equity share the holder must have the right to participate in either:

• the profits of the company (by way of dividend) in an unlimited manner; or
• the capital of the company (by way of return of capital, eg, at winding up) in an unlimited manner – that is, the share must carry the right to participate fully in either dividends or capital.

If the share is restricted in respect of only one, it can still be an equity share. Technically, a preference share can be an equity share if it is a participating preference share – that is, if the holder participates in either the profits (by way of dividends) in an unlimited manner, or the capital (at liquidation) in an unlimited manner. In the case at hand it appears that the shares were non-participating and on winding-up the right to capital was limited to the issue price. Therefore, they could not constitute equity shares.

Second, SARS ruled that the preference shares would not constitute ‘hybrid equity instruments’ for the purposes of Section 8E of the act merely because of the repurchase.

In terms of paragraph (a) of the definition of ‘hybrid equity instrument’ in Section 8E(1)(a) of the act, a ‘hybrid equity instrument’ includes any share, other than an equity share, if within a period of three years from the date of issue:

• the issuer of that share is obliged to redeem it in whole or in part; or
• that share may, at the option of the holder, be redeemed in whole or in part.

The concern seems to be that where the repurchase took place within three years of the date of issue, the repurchase could be seen as a right or obligation in respect of the redemption of the shares. However, SARS made it clear that such a repurchase alone would not be sufficient.

Third, SARS ruled that any power of the applicant to repurchase the preference shares in terms of the Takeover Regulation Panel requirements or Section 164 of the Companies Act,(2) (concerning the appraisal rights of dissenting shareholders) will not be seen as an ‘obligation’ to repurchase or redeem the preference shares for purposes of Section 8E of the act.

Capital gains tax

SARS ruled that the repurchase (and subsequent cancellation) of the preference shares would not constitute a disposal of an asset by the applicant for capital gains tax purposes.

However, it seems clear that there would be a disposal by the class members and that a potential capital loss could arise to the extent that the payment in respect of the repurchase does not constitute a dividend but a return of capital.

Securities transfer tax

SARS ruled that the repurchase would constitute a ‘transfer’ for the purposes of the Securities Transfer Tax Act,(3) and that securities transfer tax would be payable by the applicant on the repurchase price.

Dividends tax

SARS also ruled that, to the extent that the repurchase constitutes a dividend (as opposed to a return of capital that reduces the applicant’s contributed tax capital), dividends tax may have to be accounted for.

For further information on this topic please contact Heinrich Louw at DLA Cliffe Dekker Hofmeyr by telephone (+27 11 562 1000), fax (+27 11 562 1111) or email (heinrich.louw@dlacdh.com). The DLA Cliffe Dekker Hofmeyr website can be accessed at www.cliffedekkerhofmeyr.com.