Understanding Illegal Dividends: A Guide for Business Owners

Many businesses have struggled with rising costs recently, impacting their profitability, Consequently illegal dividends have become a more frequent issue for limited company owners.

illegal dividends

What are illegal dividends?

When dividends are paid to shareholders they are typically from current year profits. According to the Companies Act 2006  dividends can only be paid from distributable profits. These include current and retained profits from previous years. When a company pays dividends without sufficient profits, these are known as illegal dividends.

Legal consequences

The Companies Act states that dividends should only be paid from distributable profits. Therefore, directors authorising illegal dividends face serious ramifications. Additionally, this can include a personal liability to repay those dividends. This repayment obligation extends to shareholders who knew or suspected those dividends were illegal. 

Tax issues

Historically HMRC argued that unlawful dividends were salary payments because this resulted in a greater tax liability. However, HMRC is now, more willing to treat these as  director's loans. If HMRC proves difficult, direct them to their internal guidance to refute their approach.

The solution

Once you determine the total unlawful dividends, they must be attributed to each shareholder proportionally and recorded as a loan in the company's records. Shareholders must repay the loans, though there is no specified deadline for repayment. 

Company's tax position

If the loan is not repaid within nine months after the company's accounting period ends, the company faces a corporation tax charge of 33.75% on the outstanding amount. So for example for the year ended 31 March 2024, loans must be repaid by 31 December 2024.

Individual's tax position

If the shareholder owes the company more than £10,000, including any other amounts owed, a taxable benefit in kind applies. Given the current interest rate of 2.25%, the tax charge may be relatively modest.

Possible waivers

It is possible to waive the outstanding loan to avoid any illegal dividends, but be mindful of the tax consequences

Prevention is better than cure

To avoid the chance of illegal dividends, use an online system and work with the right adviser. This ensures access to real time financial information, potentially avoding this issue.

For more useful information, check out our Ebooks here.

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