Firstly, a quick summary of how dividends are generically arranged:
- At a particular point in time or occasionally at regular time intervals (monthly, quarterly or yearly etc) a dividend is declared by the managing directors at a company board meeting – based on the currently available financial information of the company – and this is approved by the shareholders.
- The minutes of the board meeting note this declaration of dividend.
- A dividend voucher is then prepared for the recipient of the dividend.
- The relevant accounting entries are then made in the company accounts for this declaration and is then declared in the tax return of the recipient.
However – the point is that there must be retained profit (current year profit / loss plus the profit / loss carried forward from previous years) to legally pay a dividend (CA2006 S830). If these retained profits don’t exist at the point in time a dividend is declared then they can be declared as being “illegal” dividends or ultra vires. Here a shareholder who knows or has reasonable grounds to believe that a dividend is unlawful is liable to replay this sum back to the company.
The exception is where a shareholder is not aware that a dividend received is unlawful – although this would not typically apply to smaller owner managed companies but more to the larger quoted companies. Here the taxman will then reassess all dividends typically as a loan and this could result in a potentially large tax bill as it will now be classified as a taxable benefit in kind (effectively a form of employment income with the relevant taxes due on this amount) and will also attract a special rate of corporation tax (CTA 2010 S455).
So, basically, make sure that the proper paperwork is completed and that the retained profit is available before paying dividends. We help to make sure that all of our limited company clients abide by these procedures. If you’re not sure get in touch for a free consultation and company review.