Contractors failing to justify dividend declaration decisions and not completing the correct dividend paperwork for their contractor limited companies could have their dividends declared illegal by HMRC. Should that happen, they may be forced to pay income tax and National Insurance Contributions (NICs) on income then reclassified as salary. And, if not repaid, an illegal dividend could be classified as a directors’ loan, potentially attracting S455 (formerly S419) corporation tax and a charge for benefit in kind (BIK) on the interest.
“An illegal dividend can be declared when there are insufficient profits to cover the dividend at the time of payment,” explains James Abbott of specialist contractor accountant Baker Watkin. “A dividend can also be illegal if a contractor fails to complete board meeting minutes of the dividend decision and a dividend voucher for shareholders, according to the requirements of the Companies Act.”
Abbott warns contractors that HMRC has in recent years focused on the legality of dividends: “A contractor’s accountant will put any illegal dividends into the director’s loan account before the accounts are submitted to HMRC. If the contractor is then the subject of an HMRC enquiry, HMRC may and try and argue that the illegal dividend should have been treated as salary at the time of the payment.
“This might result in a bill for additional income tax, NICs, penalties and interest, particularly if the loan is later cleared by salary.”
What is an illegal dividend?
According to Abbott, contractors will find HMRC uses the term ultra vires dividends to describe dividends it considers illegal, with ultra vires literally meaning ‘beyond the powers’. In plain English, it means that company directors declaring a dividend when there are insufficient profits don’t actually have the authority to make that decision.
“In addition to the requirements of the Companies Act, and for there to be a profit at the time a dividend is declared, there is a common law principle that directors should not declare a dividend if it would be imprudent to do so.”
Abbott says that most one-person mainstream contracting businesses would be unlikely to fall foul of common law dividend rules, but contractors who diversify their business into other areas – such as software, employment businesses, investments or property – should be aware that directors need to act in the interests of the company and protect company assets.
“Contractors who have diversified also need to be aware that company law says certain types of profit cannot be distributed as a dividend,” adds Abbott. “Determining dividends in these instances should involve the contractor’s accountant.”
Calculating profits for the dividend decision
Because a dividend can only be declared from company profits, contractors need to keep basic management accounts and to perform a simple calculation each time they declare a dividend.
As Abbott explains, most contractor accountants will offer contractors two options: “The contractor will be required to input all their transactions into an online system or spreadsheet, which will provide a detailed breakdown of their financial situation, including profits. However, the information added by the contractor must be very accurate to ensure the calculations are correct.
“The alternative is to use a simple calculation – subtracting expenses including any salary, from fee-income revenues, taking off a further 21% to allow for corporation tax. The figure left is profit,” says Abbott. “Technically what’s left can be paid as a dividend, but ideally contractors should not take the full profits so there is spare cash for any adjustments that are made at year end.”
Abbott stresses the importance of keeping a record of any calculations, which could be as simple as saving a basic paper spreadsheet, so that the contractor can prove that at the time the dividend was declared the company was in profit.
How to correct an illegal dividend
Contractors could be liable to repay an illegal dividend if they knew, or should have known, that the dividend was illegal when it was declared. As in the majority of contractor limited companies the shareholder is also the director, it would be difficult to prove that the contractor did not know the dividend was illegal.
Don't backdate documents, such as board minutes, dividend vouchers and calculations, as that makes them legally void and is a criminal act
James Abbott, Baker Watkin
Abbott has further advice: “Don’t backdate documents, such as board minutes, dividend vouchers and calculations, as that makes them legally void and is a criminal act. And if as a contractor you have never kept these kinds of records, you should start immediately. However, if you’ve kept the records that prove the decision to declare a dividend subsequently deemed illegal was a reasonable judgement at the time, then HMRC would have difficulty in classifying this income as salary.”
James Abbott heads up Baker Watkin's tax department and often speaks on freelancer / contractor tax matters. He has his own portfolio of contractor clients.
Baker Watkin are PCG Accredited Accountants and UK200 Group members based in Hertfordshire.
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Abbott concludes: “It would be unusual for a contractor with a straightforward contract paying ongoing fee income to declare an illegal dividend as long as the contractor takes simple measures, such as calculating profits and keeping clear records of each payment.”
Published: Thursday, December 16, 2010
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