Loans to shareholders

Some banks are advising customers with business accounts to transfer excess cash to pay down the business owner’s home loan. While it might sound like common sense to use the excess cash in your business, there are significant potential problems for business owners who do this.

Money in your business account is the money of the business, not your personal cash. You can’t just take it out and move it around at will, even if it is your business.

If you run a company, there are a set of tax rules called Division 7A that apply. Division 7A is a particularly tricky piece of tax law designed to prevent business owners accessing funds that have not been taxed at their individual tax rate – only the corporate rate.  While these amounts are often debited to the shareholder’s loan account in the financial statements, Division 7A ensures that any payments, loans, or forgiven debts are treated as if they were dividends for tax purposes unless there is a valid shareholder loan agreement in place.

So, if you take money out of your company bank account to pay down your personal home loan, this amount might be treated as a deemed dividend. That is, you need to declare this amount in your personal income tax return and the dividend is not frankable.

This means that even though the company might have already paid tax on this amount, you will be taxed on it again without the ability to claim a credit for the tax already paid by the company (basically leading to double taxation).

If you have taken money out of the company account for personal purposes you can either pay back the amount or put a complying loan agreement in place before the earlier of the due date and actual lodgement date of the company’s tax return for that year. To be a complying loan agreement the agreement requires minimum repayments to be made over a set period of time and the minimum benchmark interest rate to apply – currently 5.45%. The rules are also very strict when it comes to loan repayments because these can actually be ignored if it looks like you are planning to borrow a similar or larger amount again from the company.

A similar issue can also arise if you transfer funds from a trust bank account, especially where that trust already owes amounts to a related company in the form of unpaid distributions.