The principal tax-related issue normally affecting the lenders in debt for equity swap transactions is the treatment of any loss suffered as a result of exchanging debt for shares which are likely to be worth considerably less than the debt’s face value. To maximise tax efficiency, such ‘loss’ should be available as a tax shelter at the time of the transaction. In certain jurisdictions, however, losses arising from such exchanges may not be recognised for tax purposes until the disposal of the shares.

To create a structure that will secure tax relief at the time of the debt for equity swap transaction, the following factors may need to be addressed:

The reorganisation must not be structured such that the company ‘repays’ the outstanding debt and the lenders use the notional proceeds of the repayment to subscribe for the company’s shares. Instead, the transaction needs to be an ‘exchange’ of debt for shares.

If a proportion of the shares allocated to lenders relates to rolled-up interest, a further advance may need to be made to the company to notionally repay the interest, with this new ‘debt’ then being exchanged for shares. The direct exchange of accrued interest for shares is often tax inefficient.

The tax efficiency of the transaction, both in the company’s and lenders’ interests, is a key consideration in structuring debt for equity swap transactions. Often considerable value can be released from the company’s accumulated losses by structuring the transaction effectively.