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What if the loan exceeds the distributable surplus?

Our company gave a loan to one of our shareholders but the loan exceeds the distributable surplus. Should a complying loan agreement be entered into to cover the distributable surplus or the total loan amount?
Asked in Newcastle - Newcastle and Lake Macquarie, NSW, 08-12-2015
1 Lawyer Answered
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  1. Company Tax
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Anton Joseph, Sydney 2000 NSW
  • The deemed dividend will be reduced to the extent of the distributable surplus. Any amount covered by the complying loan agreement will also be excluded from the deemed dividend amount.
  • The complying loan agreement need not cover the whole loan amount. It only needs to include the loan amount that exceeds the distributable surplus.

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