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Directors warned about the risk of paying illegal dividends

March 26, 2021

Directors need to be careful to avoid paying illegal dividends or they could become personally liable for company liabilities.

‘It’s common for directors of owner managed businesses to pay a portion of their income as dividends and with the end of the tax year fast approaching, directors will once again be turning their minds to declaring an annual payment. 


‘The rules around dividends and distributions, governed by company law capital maintenance requirements and directors’ fiduciary duties, can be complex. If the requirements are not met such that the dividend is unlawful, the directors will need to act quickly.


‘A shareholder is required to repay an unlawful distribution if they know or have reasonable grounds for knowing that it was made unlawfully at the time of payment. In the case of a distribution made otherwise than in cash, the shareholder will have to pay the company a sum equal to the value of the distribution at that time.’


The capital maintenance requirements of the Companies Act 2006 require that any distribution can only be made where distributable profits exist and that is irrespective of the level of surplus cash in the business.


The determination of distributable profits is usually made by reference to the balance on retained earnings shown in the last set of financial statements. However, directors must consider changes in financial position and performance after the balance sheet date. 


‘This is particularly relevant if the financial performance has deteriorated losses and reduced the level of the retained earnings balance. Directors may therefore need to draw up interim accounts to evaluate the position if a distribution is to be made many months after the year end.’


In view of the pandemic, care will need to be taken to ensure that appropriate accounting adjustments are made in any set of financial statements for matters such as:

  • bad and doubtful debts.
  • provisions for surplus or obsolete inventory.
  • impairment of site premises which are not being used.
  • provisions of onerous leases; and
  • early recognition of losses on contracts that will no longer be profitable.


‘The directors will need to consider whether adjustments for such matters need to be made in any interim accounts for dividends paid sometime after the year end.


Directors are also subject to fiduciary and other duties. These include the obligation to safeguard the company’s assets and take reasonable steps to ensure that the company is in a position to settle its debts as they fall due. Debts will include trade creditors and loan borrowings, but other factors may be important such as liabilities towards pension schemes.


‘Directors should consider both the immediate cash flow implications of a distribution and the continuing ability of the company to pay its debts as they fall due,’. ‘Directors must consider whether the company will still be solvent following a proposed distribution. Directors may be personally liable should the company become insolvent.’


September 17, 2024
The move to Making Tax Digital for income tax from 2026 will cost sole traders and landlords on average £350 to set up the correct reporting system. HMRC estimates that the new MTD rules will result in an average annual additional cost of £110 for those reporting within the £30,000 to £50,000 threshold, while those with income over £50,000 will face transitional costs of £285, with ongoing costs of £115 a year. Up to 780,000 people with business or property income over £50,000 will have to report through the MTD for ITSA service from April 2026 with a further 970,000 set to sign up from April 2027 when the scheme extends to those with income between £30,000 and £50,000. Under MTD for income tax, landlords and sole traders will have to report income on a quarterly basis but the government dropped the requirement for a fifth report consolidating the annual information, a move announced at the Autumn Statement last November. The extension of MTD is set to raise an additional £120m in tax in the first year of operation, rising to £465m in 2027-28. The new reporting requirements are designed to reduce the level of errors and help to close the tax gap when they come into force from April 2026. HMRC estimates a transitional cost to business of around £561m and a net increase in the continuing costs of tax compliance of around £196m for those businesses mandated to use MTD for ITSA. Transitional one-off costs will include time spent in familiarisation with the new MTD reporting with digital record keeping and quarterly submission of information, in-house training, the purchase of new hardware or upgrading of existing hardware and additional accountancy or agents' costs. Transitional costs can be offset against the business' profits for tax purposes. Ongoing costs for business will be made up of the cost of subscriptions to MTD compatible software systems, additional time for making quarterly updates, and the cost of bridging software for those who want to continue using spreadsheets. Software and agent costs for business purposes, are tax deductible. HMRC estimates IT and non-IT costs for this next phase of MTD expansion will be in the region of £500m to the end of March 2028. 'MTD for ITSA is intended to help businesses get their tax right, with mandatory use of digital record keeping and using MTD compatible software to provide updates and returns digitally,' HMRC said. 'These measures are expected to improve businesses' experience of dealing with HMRC as managing their tax affairs will be simpler. Once businesses are used to operating the new MTD processes, we anticipate that they will find that MTD makes it easier for them to get things right and reduce errors.' At the moment, original plans to extend MTD for ITSA to those with income below £30,000 are on hold, while HMRC said it ‘remains committed’ to extending the scheme to partnerships. To be fully compliant and set up, please get in touch: lee@longdencompany.co.uk .
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