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Special Determination S19: Mandatory conversion convertible notes with consumer price index adjustments to face value

This Determination may be cited as Special Determination SX: "Mandatory Conversion Convertible Notes with Consumer Price Index Adjustments to Face Value".

[Editor's note: the reference to SX in the paragraph above is an error. This Determination should be referred to as Determination S19]

1. Explanation (which does not form part of the determination)

  1. This Determination relates to mandatory conversion convertible notes (MCNs) to be issued by ABC Company (Issuer) a wholly owned special purpose subsidiary of DEF Company (the Shareholder) to XYZ Company (the Noteholder).
  2. The MCNs constitute financial arrangements in respect of which the Noteholder provides funds to the Issuer, with the debt to be discharged at a future date by the issue of Noteholder Shares in the Issuer to the Noteholder. The face value of the MCNs will increase or decrease in line with the All Groups Consumers Price Index (CPI) as measured and published by Statistics New Zealand. Coupon Interest will be paid (in cash) on the Adjusted Face Value of the MCNs, in the period between the issue of the MCNs and the conversion of the MCNs into Noteholder Shares.
  3. An amount (whether it is income, gain, loss or expenditure) that is solely attributable to an excepted financial arrangement (as described in ss EW 5(2) to EW 5(16) of the Income Tax Act 2007) is not taken into account under the Financial Arrangements Rules (in accordance with s EW 6(2)).
  4. As a share is an excepted financial arrangement under s EW 5(13) of the Income Tax Act 2007, only the Coupon Interest and the CPI Adjustment (provided condition 5(d) of the Deed Poll is not invoked) will be regarded as income or expenditure under the Financial Arrangements Rules. Any fluctuation in the market value of the Noteholder Shares will be disregarded.
  5. This Determination prescribes the method to be used by the Issuer when calculating the aggregate income derived or aggregate expenditure incurred in respect of the MCNs under the Financial Arrangements Rules. It details which amounts are to be included for this calculation and which are attributable to an excepted financial arrangement.

2. Reference

  1. This Determination is made pursuant to s 90AC(1)(bb) of the Tax Administration Act 1994.

3. Scope of determination

  1. This Determination applies only to the MCNs described as follows:
    1. The Issuer will borrow money from the Noteholder by issuing a MCN to the Noteholder. The amount borrowed will be $100 million. The face value of the MCNs will adjust quarterly in line with the All Groups CPI using the calculation set out in Schedule 1 of the Deed Poll. If Statistics New Zealand ceases to publish the All Groups CPI, the appropriate replacement index or base, as set out in the definition of "Index" in Schedule 1 of the Deed Poll, will be used in place of the All Groups CPI.
    2. The MCNs will pay Coupon Interest of 4% per annum (payable monthly, in arrears) on the Adjusted Face Value of the MCNs, provided that doing so does not breach the solvency test (under the Companies Act 1993) or any other legal obligation of the Issuer, or if the Noteholder is in default. If the solvency test or other legal obligation of the Issuer is breached, or if the Noteholder is in default, interest payments will be suspended. However, interest will continue to accrue at the Default Interest Rate if the suspension is due to either of the first two of the above events. "Default Interest Rate" is defined as the Coupon Interest rate (which is 4% for the original term and 5% where the term of the MCNs is extended) plus 1% per annum. If an Event of Default (as defined in condition 8 of the Deed Poll) occurs, interest will accrue at the Default Interest Rate. The Noteholder will also have the option to require the Issuer to redeem the MCNs.
    3. The MCNs will carry the same voting rights as those attaching to the Shareholder Shares.
    4. After 10 years, where condition 5(d) of the Deed Poll has not been invoked, and where the Adjusted Face Value of the MCNs is equal to, or less than, the value of the Shareholder Shares, the MCNs will convert into Noteholder Shares with a value equal to the Shareholder Shares held by the Shareholder. The Noteholder and the Shareholder will then each have 50% of the shares in the Issuer.
    5. After 10 years, where condition 5(d) of the Deed Poll has not been invoked, and where the Adjusted Face Value of the MCNs is more than the value of the Shareholder Shares, the Issuer may elect to extend the term of the MCNs by 3 years. Where this occurs, the Coupon Interest will increase to 5% and the MCNs will convert on the Replacement Conversion Date.
    6. If condition 5(d) of the Deed Poll has not been invoked, and the Adjusted Face Value of the MCNs is more than the value of the Shareholder Shares, whether the term of the MCNs has been extended (as described in paragraph 3(1)(e) above) or not, the Shareholder may subscribe for additional Shareholder Shares under condition 5(b) of the Deed Poll. This involves the Shareholder subscribing for additional Shareholder Shares in the Issuer. The purchase of the additional Shareholder Shares will provide funds to the Issuer, all of which must be used by the Issuer to repay part of the Adjusted Face Value of the MCNs owing to the Noteholder. This subscription increases the Shareholder’s shareholding, while at the same time reducing the value of the Noteholder Shares that the Noteholder is entitled to receive on conversion. The value of the share purchase by the Shareholder is such that on conversion of the remainder, the Noteholder and the Shareholder will each have 50% of the shares in the Issuer.
    7. The Noteholder will be entitled to appoint 50% of the board of directors of the Issuer. If the Noteholder’s Directors vote against a recommendation made by the property manager and supported by the Shareholder appointed directors (except where that recommendation relates to front loading, or involves a transaction between the Shareholder and a related company), and such vote is ratified by the Noteholder then condition 5(d) of the Deed Poll may be invoked. If condition 5(d) is invoked, the Noteholder will lose its right, on conversion, to receive Noteholder Shares to the value of the Adjusted Face Value of the MCNs. In this event, on the Conversion Date, or Replacement Conversion Date (as the case may be), the Issuer will issue to the Noteholder Shares equal to the number of Shareholder Shares on issue to the Shareholder on the Conversion Date.

4. Principle

  1. (1) The MCNs have both debt and equity components. They can be regarded alternatively as:
    1. a loan to the Issuer with repayment in shares (debt component); or
    2. (b) a forward purchase of shares (in which case the holder of the MCNs is buying shares in a company and has equity in it).
  2. As the MCNs have this dual character, when calculating income or expenditure in relation to the MCNs it is first necessary to separate the debt and equity components of the MCNs.
  3. This Determination specifies that the Coupon Interest and (where condition 5(d) of the Deed Poll has not been invoked) the CPI Adjustment, relate to the debt component of the MCNs. Changes in the value of the Noteholder Shares relate to the equity component and will be excluded from the application of the Financial Arrangements Rules when calculating income or expenditure for the Issuer.
  4. This Determination specifies that if condition 5(d) of the Deed Poll is invoked then, from the date the condition is invoked, only the Coupon Interest will relate to the debt component of the MCNs. If condition 5(d) is invoked then the CPI Adjustment and any changes in the value of the Noteholder Shares will relate to the equity component and will be excluded from the application of the Financial Arrangements Rules when calculating income or expenditure for the Issuer. Further, any income or deductions already returned or claimed for the CPI Adjustments must be reversed (see paragraph 6(9) of this determination below).
  5. For the purposes of this Determination any change in the market value of the Noteholder Shares between the issue date of the MCNs and the conversion of the MCNs into shares is solely attributable to the equity component of the MCNs. Therefore, the difference in Noteholder Share price can be ignored when calculating income and expenditure.

5. Interpretation

  1. In this Determination, the following expressions (which have not been defined elsewhere in this Determination) have the following meanings:
    1. "Adjusted Face Value" means the initial face value of the MCNs together with the quarterly CPI adjustments to the face value of the MCNs.
    2. "Financial Arrangements Rules" means the rules referred to in section YA 1 and EW 1(2) of the Income Tax Act 2007.
  2. "Coupon Interest" means the cash interest amounts paid on a monthly basis by the Issuer to the Noteholder pursuant to the terms of the Deed Poll.
  3. "CPI Adjustment" means the quarterly adjustments to the face value of the Notes pursuant to the terms of the Deed Poll.
  4. Noteholder Shares in relation to the MCNs means the fully paid ordinary shares in the Issuer to be issued on conversion of the MCNs.
  5. "Shareholder Shares" means the fully paid ordinary shares in the Issuer held by the Shareholder, including any additional shares subscribed for under condition 5(b) of the Deed Poll.

6. Method

  1. When calculating the aggregate income or aggregate expenditure with regard to the MCNs, the income, gain, loss, expenditure or any other consideration receivable by the Noteholder or payable by the Issuer will be:
    1. where condition 5(d) of the Deed Poll has not been invoked during the term of the MCNs:
      1. the Coupon Interest; and
      2. the CPI Adjustment.
    2. where condition 5(d) of the Deed Poll is invoked during the term of the MCNs, from that date, only the Coupon Interest.
  2. The amount to be attributed to the CPI Adjustment is the net amount by which the face value of the MCNs increases or decreases over the term of the MCNs.
  3. If condition 5(d) of the Deed Poll has not been invoked during the term of the MCNs:
    1. where the face value of the MCNs increases, the CPI Adjustment shall be expenditure; or
    2. where the face value of the MCNs decreases, the CPI Adjustment shall be income.
  4. If condition 5(d) of the Deed Poll is invoked during the term of the MCNs, from that date, the CPI Adjustment will cease to be either expenditure or income. In this situation, any income or deduction already returned or claimed for the CPI Adjustment must be reversed (see paragraph 6(9) of this determination below).
  5. All other income, gains, losses or expenditure in relation to the MCNs is solely attributable to the excepted financial arrangement component of the MCNs.
  6. The Coupon Interest payment and the CPI Adjustment (as applicable) will be spread over the term of the MCNs as follows:
    1. in respect of Coupon Interest, the amount to be attributed to an income year during which the MCNs are on issue will be the total of all interest expenditure incurred in the relevant income year. For example, for the income year ending 30 June 2012, this will include all interest payments falling due for payment up to and including the payment to be made on 1 July 2012.
    2. in respect of the CPI Adjustment, where condition 5(d) of the Deed Poll has not been invoked, the amount to be attributed to an income year during which the MCNs are on issue will be the amount by which the face value of the MCNs increases or decreases in respect of months falling within that income year. For example, for the income year ending 30 June 2012, this will include the CPI Adjustments made up to and including the CPI Adjustment to be made on 1 July 2012. This net amount of the CPI Adjustment will either be expenditure (where it increases) or income (where it decreases) for that income year.
  7. The Issuer is an International Financial Reporting Standards (IFRS) taxpayer. At the time that the MCNs are issued, the above method will be consistent with an IFRS financial reporting method (provided that condition 5(d) of the Deed Poll is not invoked during the term of the MCNs).
  8. For the purposes of the base price adjustment, the amount of the consideration that has been paid to the Issuer for the MCNs (based on the definition of "consideration" in s EW 31(7) of the Income Tax Act 2007) is the amount subscribed for the MCNs with no part of the consideration being attributable to the excepted financial arrangement component of the MCNs.
  9. If condition 5(d) of the Deed Poll has not been invoked, for the purposes of the base price adjustment, the amount of the consideration that will be paid by the Issuer for the MCNs by way of the issue of Noteholder Shares (based on the definition of "consideration" in s EW 31(7) of the Income Tax Act 2007) is equal to the Adjusted Principal Amount (which includes the CPI Adjustments).
  10. If condition 5(d) of the Deed Poll has been invoked, the Issuer will complete a calculation applying the method in Determination G25 in the income year in which the condition is invoked so that the CPI Adjustments treated as income or expenditure to date are reversed in that income year.
  11. If condition 5(d) of the Deed Poll has been invoked, for the purposes of the base price adjustment calculated at maturity of the MCNs, the amount of the consideration that will be paid by the Issuer for the MCNs by way of the issue of Noteholder Shares (based on the definition of "consideration" in s EW 31(7) of the Income Tax Act 2007) is equal to the amount that was paid by the Noteholder to the Issuer for the MCNs.

7. Examples

Example A - Adjusted principal amount is greater than the value of the Shareholder's Shares

  1. This example illustrates the application of the method (set out in this Determination) for determining the amounts attributable to both the debt and equity components of the MCNs to be issued by the Issuer to the Noteholder.
  2. The example assumes the following:
    • The MCNs are issued on 1 July 2011 and the Noteholder will continue to hold the MCNs until 30 June 2021, when the MCNs will mandatorily convert into shares in the Issuer.

      The amount subscribed for the MCNs is $100 million.

      The CPI, for all relevant quarters, is 2% per annum.

      Interest payments are not suspended during the term of the MCNs.

      On conversion, the Adjusted Principal Amount will be less than the total value of the Issuer’s assets

      On conversion, the Adjusted Principal Amount will be greater than the total value of the Shareholder's Shares.

      Condition 5(d) of the Deed Poll has not been invoked.
  3. The Issuer will be allowed deductions for expenditure arising under the Financial Arrangements Rules during the term of the MCNs. This expenditure is in the form of the CPI Adjustments and the coupon interest payments. The expenditure for the first two income years, for which deductions will be allowed, is set out in the table in Appendix 1 (the deductions will continue on this basis during the term of the MCN). It is noted that the CPI Adjustments will be deductible whether paid in the form of shares only or a combination of shares and cash (where the Shareholder subscribes for additional shares and the Issuer uses the funds raised to redeem part of the MCNs prior to the MCNs being converted to Noteholder Shares).
  4. Any other amounts will be attributable to the equity component of the MCNs.
  5. The base price adjustment required for the 2021 income year will be as follows:
Example A
     
Consideration  
Paid/payable to the Issuer   100,000,000.00
Less paid/payable by the Issuer 100,000,000.00  
Total CPI Adjustment* 21,472,063.33  
Total Interest 44,157,430.48  
    165,629,493.81
Consideration   -65,629,493.81
     
Less Income   0.00
     
Plus Expenditure  
CPI Adjustment 19,072,689.04  
Total interest 39,334,852.73  
Total expenditure 58,407,541.77  
     
Plus amount remitted 0.00  
     
Base price adjustment -7,221,952.04  
     
Notes A deduction will be available to the Issuer in the 2021 tax year of $7,221,952.04 (which is the current year’s coupon interest and CPI adjustment). *The initial investment plus the total CPI Adjustment will equal the Adjusted Principal Amount.

Example B - Adjusted principal amount is equal to or less than the value of Shareholder's Shares

  1. This example proceeds on the same basis as Example A, except that on conversion, the Adjusted Principal Amount will be equal to, or less than, the total value of the Shareholder’s Shares.
  2. The deductions allowed are the same as in Example A.
  3. The base price adjustment is the same as in Example A.
  4. All other amounts will be attributable to the equity component of the MCNs. In particular (and this is the point of this example), the difference between the value of the Noteholder Shares and the Adjusted Principal Amount will be attributable to the equity component of the MCNs.

Example C Extension of term

  1. This example proceeds on the same basis as Example A, except that the Issuer elects to extend the term of the MCNs by 3 years (as contemplated by the Deed Poll).
  2. The Issuer will be allowed deductions in the same way as described in Example A except that the coupon interest will be calculated at a higher rate for the period after the extension. The expenditure during the 3 year extension period, for which deductions will be allowed, is set out in the table in Appendix 2.
  3. As with Example A, all other amounts will be attributable to the equity component of the MCNs.
  4. The base price adjustment required if the period is extended will be as follows:
Example C - extension of term
     
Consideration    
Paid/payable to the Issuer   100,000,000.00
Less paid/payable by the Issuer 100,000,000.00  
Total CPI Adjustment* 28,964,194.40  
Total Interest 62,980,811.38  
    191,945,005.78
Consideration   -91,945,005.78
     
Less Income   0.00
     
Plus Expenditure    
CPI Adjustment 26,416,831.95  
Total interest 56,580,737.65  
Total expenditure   82,997,569.60
     
Plus amount remitted   0.00
     
Base price adjustment   -8,947,436.18
     
Notes A deduction will be available to the Issuer for the 2024 tax year of $8,947,436.18 (which is the current year’s coupon interest and CPI adjustment). * The initial investment plus the total CPI Adjustment will equal the Adjusted Principal Amount.

This Determination is signed by me on the 10th day of October 2011.

M A Smith
Chief Tax Counsel

 

Appendix 1: expenditure for the first two income years

Interest Period Interest payment date Principal amount CPI Adjustment New Principal Amount Interest (4%) CPI Adjustment plus Interest Annual Cumulative Total
Jul-11 1-Aug-11 100,000,000.00     338,797.81 338,797.81 338,797.81
Aug-11 1-Sep-11 100,000,000.00     338,797.81 338,797.81 677,595.63
Sep-11 1-Oct-11 100,000,000.00     327,868.85 327,868.85 1,005,464.48
Oct-11 1-Nov-11 100,000,000.00 500,000.00 100,500,000.00 340,491.80 840,491.80 1,845,956.28
Nov-11 1-Dec-11 100,500,000.00     329,508.20 329,508.20 2,175,464.48
Dec-11 1-Jan-12 100,500,000.00     340,491.80 340,491.80 2,515,956.28
Jan-12 1-Feb-12 100,500,000.00 502,500.00 101,002,500.00 342,194.26 844,694.26 3,360,650.55
Feb-12 1-Mar-12 101,002,500.00     320,117.21 320,117.21 3,680,767.76
Mar-12 1-Apr-12 101,002,500.00     342,194.26 342,194.26 4,022,962.02
Apr-12 1-May-12 101,002,500.00 505,012.50 101,507,512.50 332,811.52 837,824.02 4,860,786.04
May-12 1-Jun-12 101,507,512.50     343,905.23 343,905.23 5,204,691.27
Jun-12 1-Jul-12 101,507,512.50     332,811.52 332,811.52 5,537,502.79
2012 income year - total expenditure under the financial arrangements rules     5,537,502.79
 
Jul-12 1-Aug-12 101,507,512.50 507,537.56 102,015,050.06 346,571.68 854,109.24 854,109.24
Aug-12 1-Sep-12 102,015,050.06     346,571.68 346,571.68 1,200,680.92
Sep-12 1-Oct-12 102,015,050.06     335,391.95 335,391.95 1,536,072.86
Oct-12 1-Nov-12 102,015,050.06 510,075.25 102,525,125.31 348,304.54 858,379.79 2,394,452.65
Nov-12 1-Dec-12 102,525,125.31     337,068.91 337,068.91 2,731,521.55
Dec-12 1-Jan-13 102,525,125.31     348,304.54 348,304.54 3,079,826.09
Jan-13 1-Feb-13 102,525,125.31 512,625.63 103,037,750.94 350,046.06 862,671.68 3,942,497.77
Feb-13 1-Mar-13 103,037,750.94     316,170.63 316,170.63 4,258,668.41
Mar-13 1-Apr-13 103,037,750.94     350,046.06 350,046.06 4,608,714.46
Apr-13 1-May-13 103,037,750.94 515,188.75 103,552,939.69 340,448.02 855,636.78 5,464,351.24
May-13 1-Jun-13 103,552,939.69     351,796.29 351,796.29 5,816,147.53
Jun-13 1-Jul-13 103,552,939.69     340,448.02 340,448.02 6,156,595.55
2013 income year - total expenditure under the financial arrangements rules     6,156,595.55

 

Appendix 2: expenditure in the extended period

Interest period Interest payment date Principal amount CPI adjustment New principal amount Interest (5%) CPI adjustment plus interest Annual cumulative total
Jul-21 1-Aug-21 121,472,063.33 607,360.32 122,079,423.65 518,419.47 1,125,779.79 1,125,779.79
Aug-21 1-Sep-21 122,079,423.65     518,419.47 518,419.47 1,644,199.26
Sep-21 1-Oct-21 122,079,423.65     501,696.26 501,696.26 2,145,895.52
Oct-21 1-Nov-21 122,079,423.65 610,397.12 122,689,820.77 521,011.57 1,131,408.69 3,277,304.20
Nov-21 1-Dec-21 122,689,820.77     504,204.74 504,204.74 3,781,508.95
Dec-21 1-Jan-22 122,689,820.77     521,011.57 521,011.57 4,302,520.52
Jan-22 1-Feb-22 122,689,820.77 613,449.10 123,303,269.87 523,616.63 1,137,065.73 5,439,586.24
Feb-22 1-Mar-22 123,303,269.87     472,944.05 472,944.05 5,912,530.29
Mar-22 1-Apr-22 123,303,269.87     523,616.63 523,616.63 6,436,146.92
Apr-22 1-May-22 123,303,269.87 616,516.35 123,919,786.22 509,259.40 1,125,775.74 7,561,922.66
May-22 1-Jun-22 123,919,786.22     526,234.71 526,234.71 8,088,157.37
Jun-22 1-Jul-22 123,919,786.22     509,259.40 509,259.40 8,597,416.77
2022 income year - total expenditure under the financial arrangements rules     8,597,416.77
 
Jul-22 1-Aug-22 123,919,786.22 619,598.93 124,539,385.15 528,865.88 1,148,464.81 1,148,464.81
Aug-22 1-Sep-22 124,539,385.15     528,865.88 528,865.88 1,677,330.70
Sep-22 1-Oct-22 124,539,385.15     511,805.69 511,805.69 2,189,136.39
Oct-22 1-Nov-22 124,539,385.15 622,696.93 125,162,082.08 531,510.21 1,154,207.14 3,343,343.53
Nov-22 1-Dec-22 125,162,082.08     514,364.72 514,364.72 3,857,708.25
Dec-22 1-Jan-23 125,162,082.08     531,510.21 531,510.21 4,389,218.46
Jan-23 1-Feb-23 125,162,082.08 625,810.41 125,787,892.49 534,167.76 1,159,978.17 5,549,196.63
Feb-23 1-Mar-23 125,787,892.49     482,474.11 482,474.11 6,031,670.74
Mar-23 1-Apr-23 125,787,892.49     534,167.76 534,167.76 6,565,838.50
Apr-23 1-May-23 125,787,892.49 628,939.46 126,416,831.95 519,521.23 1,148,460.69 7,714,299.19
May-23 1-Jun-23 126,416,831.95     536,838.60 536,838.60 8,251,137.79
Jun-23 1-Jul-23 126,416,831.95     519,521.23 519,521.23 8,770,659.02
2023 income year - total expenditure under the financial arrangements rules
 
  8,770,659.02
 
Jul-23 1-Aug-23 126,416,831.95 632,084.16 127,048,916.11 538,048.69 1,170,132.85 1,170,132.85
Aug-23 1-Sep-23 127,048,916.11     538,048.69 538,048.69 1,708,181.54
Sep-23 1-Oct-23 127,048,916.11     520,692.28 520,692.28 2,228,873.82
Oct-23 1-Nov-23 127,048,916.11 635,244.58 127,684,160.69 540,738.93 1,175,983.51 3,404,857.33
Nov-23 1-Dec-23 127,684,160.69     523,295.74 523,295.74 3,928,153.07
Dec-23 1-Jan-24 127,684,160.69     540,738.93 540,738.93 4,468,892.00
Jan-24 1-Feb-24 127,684,160.69 638,420.80 128,322,581.49 543,442.63 1,181,863.43 5,650,755.43
Feb-24 1-Mar-24 128,322,581.49     508,381.81 508,381.81 6,159,137.24
Mar-24 1-Apr-24 128,322,581.49     543,442.63 543,442.63 6,702,579.87
Apr-24 1-May-24 128,322,581.49 641,612.91 128,964,194.40 528,541.78 1,170,154.69 7,872,734.56
May-24 1-Jun-24 128,964,194.40     546,159.84 546,159.84 8,418,894.40
Jun-24 1-Jul-24 128,964,194.40     528,541.78 528,541.78 8,947,436.18
2024 income year - total expenditure under the financial arrangements rules     8,947,436.18