The Dividend Allowance was introduced in April 2016 and it allows you to take £5,000 in dividends tax free.
As announced at Spring Budget 2017, the government will legislate in Finance Bill 2017 to reduce the tax-free allowance for dividend income from £5,000 to £2,000.
So in 2016/17 and 2017/18 you need to take the £5,000 because in 2018/19 its dropping to £2,000 and most people expect it to disappear in 2019/20.
Dividends above the allowance are taxed as follows:
7.5% on dividend income within the basic rate band
32.5% on dividend income within the higher rate band
38.1% on dividend income within the additional rate band
What are the requirements for a legal dividend?
Companies Act 2006 Section 830 – Distributions to be made only out of profits available for the purpose
(1)A company may only make a distribution out of profits available for the purpose.
(2)A company’s profits available for distribution are its accumulated, realised profits, so far as not previously utilised by distribution or capitalisation, less its accumulated, realised losses, so far as not previously written off in a reduction or reorganisation of capital duly made.
(3)Subsection (2) has effect subject to sections 832 and 835 (investment companies etc: distributions out of accumulated revenue profits).
A distribution must be justified by
The Company’s last published accounts
Interim Accounts
Initial Accounts
In small businesses having the right paperwork is vital should HMRC raise any questions, you will need:
Companies Act 2006 Section 830 – Distributions to be made only out of profits available for the purpose
(1)A company may only make a distribution out of profits available for the purpose.
(2)A company’s profits available for distribution are its accumulated, realised profits, so far as not previously utilised by distribution or capitalisation, less its accumulated, realised losses, so far as not previously written off in a reduction or reorganisation of capital duly made.
(3)Subsection (2) has effect subject to sections 832 and 835 (investment companies etc: distributions out of accumulated revenue profits).
A distribution must be justified by
The Company’s last published accounts
Interim Accounts
Initial Accounts
In small businesses having the right paperwork is vital should HMRC raise any questions, you will need:
Board Minutes
Dividend Vouchers
What are illegal dividends?
Companies Act 2006 Section 847 – Consequences of unlawful distribution
(1)This section applies where a distribution, or part of one, made by a company to one of its members is made in contravention of this Part.
(2)If at the time of the distribution the member knows or has reasonable grounds for believing that it is so made, he is liable—
(a)to repay it (or that part of it, as the case may be) to the company, or
(b)in the case of a distribution made otherwise than in cash, to pay the company a sum equal to the value of the distribution (or part) at that time.
(3)This is without prejudice to any obligation imposed apart from this section on a member of a company to repay a distribution unlawfully made to him.
Mistakes can happen..
Mistakes can happen even to large companies like NEXT PLC…
Whilst the Company always had sufficient reserves to pay the Relevant Distributions at the time that they were made, the Act required this to be demonstrated by reference to interim accounts filed at Companies House prior to payment. Regrettably, those interim accounts were not filed with Companies House until after the Relevant Distributions had been paid and after the lapse had been identified. No fines or other penalties have been incurred by the Company.
Section 386 Duty to keep accounting records
(1)Every company must keep adequate accounting records.
(2)Adequate accounting records means records that are sufficient—
(a)to show and explain the company’s transactions,
(b)to disclose with reasonable accuracy, at any time, the financial position of the company at that time, and
(c)to enable the directors to ensure that any accounts required to be prepared comply with the requirements of this Act (and, where applicable, of Article 4 of the IAS Regulation).
(3)Accounting records must, in particular, contain—
(a)entries from day to day of all sums of money received and expended by the company and the matters in respect of which the receipt and expenditure takes place, and
(b)a record of the assets and liabilities of the company.
(4)If the company’s business involves dealing in goods, the accounting records must contain—
(a)statements of stock held by the company at the end of each financial year of the company,
(b)all statements of stocktakings from which any statement of stock as is mentioned in paragraph (a) has been or is to be prepared, and
(c)except in the case of goods sold by way of ordinary retail trade, statements of all goods sold and purchased, showing the goods and the buyers and sellers in sufficient detail to enable all these to be identified.
Mistakes can happen even to large companies like NEXT PLC…
Whilst the Company always had sufficient reserves to pay the Relevant Distributions at the time that they were made, the Act required this to be demonstrated by reference to interim accounts filed at Companies House prior to payment. Regrettably, those interim accounts were not filed with Companies House until after the Relevant Distributions had been paid and after the lapse had been identified. No fines or other penalties have been incurred by the Company.
So what are the rules….
Companies Act 2006 Section 830 – Distributions to be made only out of profits available for the purpose
(1)A company may only make a distribution out of profits available for the purpose.
(2)A company’s profits available for distribution are its accumulated, realised profits, so far as not previously utilised by distribution or capitalisation, less its accumulated, realised losses, so far as not previously written off in a reduction or reorganisation of capital duly made.
(3)Subsection (2) has effect subject to sections 832 and 835 (investment companies etc: distributions out of accumulated revenue profits).
A distribution must be justified by
The Company’s last published accounts
Interim Accounts
Initial Accounts
In small businesses having the right paperwork is vital should HMRC raise any questions, you will need:
The consultation is focusing on Capital Gains Tax (CGT) ways to extract money from companies to create Target Anti Avoidance Rules (TAAR) covering:
A disposal of shares to a third party
A distribution made in a winding up
A repayment of Share Capital including Share Premium
A valid purchase of own shares in an unquoted company
Here are the examples of ‘problems’ HMRC want to resolve, Example 1 is ‘moneyboxing’ and/or ‘phoenixism’ and sometimes involves ‘special purpose vehicles’
Example 2 involves creating a holding company…
The consultation ends on the 3rd February 2016, the results are likely to be controversial!
When you take dividends has never been more critical due to changes in the Summer Budget 2015, so if you have distributable reserves you might want to take more dividends this tax year, try the Dividend Calculator above to see how much difference it could make.
Dividend tax rates before April 2016
Tax band
Effective dividend tax rate
Basic rate (20%) (and non-taxpayers)
0%
Higher rate (40%)
25%
Additional rate (45%)
30.56%
This will change from April 2016, see the table below
Dividend tax rates after April 2016
Tax band
Effective dividend tax rate
Tax Free £5,000
0%
Basic Rate Tax Payers (20%)
7.5%
Higher Rate Tax Payers (40%)
32.5%
Additional Rate Tax Payers (45%)
38.1%
The new rules are easier to follow, the 10% tax credit in the current rules is hard for most people to follow.
While these rates remain below the main rates of income tax, those who receive significant dividend income – for example due to very large shareholdings (typically more than £140,000) or as a result of receiving significant dividends through a closed company – will pay more.
The current dividend tax credit system is a bit confusing and works as follows
You want to pay a dividend of £900. Divide £900 by 9, which gives you a dividend tax credit of £100. Pay £900 to the shareholder – but add the £100 tax credit and record a total of £1,000 on the dividend voucher. The dividend is then shown gross on the tax return and then the 10% tax credit is deducted rates of tax are then applied as noted below.
Dividend tax rates before April 2016
Tax band
Effective dividend tax rate
Basic rate (20%) (and non-taxpayers)
0%
Higher rate (40%)
25%
Additional rate (45%)
30.56%
This will change from April 2016, see the table below
Dividend tax rates after April 2016
Tax band
Effective dividend tax rate
Tax Free £5,000
0%
Basic Rate Tax Payers (20%)
7.5%
Higher Rate Tax Payers (40%)
32.5%
Additional Rate Tax Payers (45%)
38.1%
But be warned!
While these rates remain below the main rates of income tax, those who receive significant dividend income – for example due to very large shareholdings (typically more than £140,000) or as a result of receiving significant dividends through a closed company – will pay more.
These changes will also start to reduce the incentive to incorporate and remunerate through dividends rather than through wages to reduce tax liabilities. This will reduce the cost to the Exchequer of future tax motivated incorporation (TMI) by £500 million a year from 2019‑20. The tax system will continue to encourage entrepreneurship and investment, including through lower rates of Corporation Tax. (HM Treasury Summer Budget 2015)
Let’s look at the case of Richard and Julie Jones v HMRC [2014] UKFTT 1082 (5 December 2014).
They took a small salary and regular dividends from their recruitment company which was absolutely fine until the company got into financial trouble!
Their accountant (unethically but in an attempt to help their client) suggested they should re-write history and change the dividends to salary so that the liquidator couldn’t recall the dividends.
HMRC then decided to demand PAYE and NI and pursued Richard and Julie personally.
HMRC was refused the right to collect PAYE tax and NI due on the salary, not because the law didn’t allow it, but because it wasn’t possible for Richard & Julie to reclassify the dividends. They had been properly paid and the correct procedure followed. History couldn’t be rewritten and the dividends should have been changed to loans if the dividends were illegal.
Dividends are paid at the same rate for each category of share in accordance with the number of shareholdings held
CTA10/S1168(1) specifies that dividends are treated as paid for the purposes of the Corporation Tax Acts ‘on the date when they become due and payable’
Never be tempted to backdate board minutes and dividend vouchers, as the documents will be legally void and can constitute a criminal offence.
There are times when, for good reasons, a Shareholder may wish to waive their right to a dividend, but HMRC are well aware that often waiving a dividend can have tax implications (bounty and settlement) and they have the following advice in TSEM4225
Not all dividend waivers are vulnerable to challenge. Where a company with few shareholders declares a dividend when one or more of the shareholders has waived their right to a dividend in circumstances where other shareholders may benefit, it is possible the Settlements legislation could apply. You should look out for the following factors, which would indicate that the Settlements legislation is likely to apply.
The level of retained profits, including the retained profits of subsidiary companies, is insufficient to allow the same rate of dividend to be paid on all issued share capital.
Although there are sufficient retained profits to pay the same rate of dividend per share for the year in question, there has been a succession of waivers over several years where the total dividends payable in the absence of the waivers exceed accumulated realised profits.
There is any other evidence, which suggests that the same rate would not have been paid on all the issued shares in the absence of the waiver.
The non-waiving shareholders are persons whom the waiving shareholder can reasonably be regarded as wishing to benefit by the waiver.
The non-waiving shareholder would pay less tax on the dividend than the waiving shareholder.
So if you are thinking of waiving dividends, bare the following in mind:
A formal Deed of Waiver is required, the Deed will say that the Dividend is Irrevocably Waived, it must be dated before the right to dividend arises, it must be signed and witnessed and filed with the company statutory records
You should have a good commercial reason for the Waiver which could be to retain funds for a specific purpose and this could be stated in the Deed
Don’t make a habit of waiving dividends as it will increase the risk of questions from HMRC
Don’t give inducements to encourage Dividend Waivers
