Dividends are paid to shareholders from the current year profits (usually!). According to the Companies Act 2006, dividends can only be paid from distributable profits. When a company pays dividends without sufficient profits, this makes them illegal dividends.
Any director authorising illegal dividends will have to repay the dividends as well as any shareholders who knew or suspected those dividends were illegal.
Previously, HMRC argued that unlawful dividends were salary payments (because this meant greater tax liability!) but now, HMRC are more willing to treat them as director’s loans.
The unlawful dividends must be attributed proportionally to each shareholder and recorded as a loan in the company’s records. Shareholders must repay the loans (but there is no specified deadline!). However, if the loan is not repaid within nine months after the company’s accounting period ends, the company will face a corporation tax charge of 33.75% on the outstanding amount.
If a single shareholder owes the company more than £10,000 (including any other amounts owed) a taxable benefit in kind applies. It is also possible to waive the outstanding loan to avoid any illegal dividends, but this may lead to taxable consequences!
To find out more and to avoid the chance of illegal dividends, get in contact today on 01622 738165 and the team will be more than happy to help!