Ulovlige aktionærlån: Forklaring af aktionærernes ulovlige lånedispositioner

Abstract

In recent years there has been major focus on illegal shareholder loans, as it has represented an increasing problem. In 2011, nearly every 10th company audited had raised an illegal loan corre-sponding to 16,427 companies. The reaction to this was an amendment of the tax rules in the au-tumn of 2012 under which illegal shareholder loans were to be taxed as salary or dividend. Since then, the number of illegal loans also declined to approx. 6,500 in 2014, which seems to be a good development. However, it is interesting to note that many new loans are being raised every year and no one is trying immediately to explain why this is so. Why are so many illegal loans still being raised in companies when the rules aim at removing the incentive of those who break them? The thesis describes company and tax law rules, the effect on the annual report and the role of the accountant with respect to the issue. This provides an overall understanding of the relevant rules. Subsequently, we analyse the development in the number of illegal loans based on data from FSR – Danish Auditors supplemented by unpublished data obtained from the Danish Busi-ness Authority (ERST). Thus, a background has been set up based on which attempts will be made to explain why illegal loans are being raised in companies. These explanations are based on interviews with four state authorities public accountants, all of whom have had clients with illegal loans, and on an interview with a consultant from the Danish Business Authority em-ployed in the department dealing with illegal loans. In connection with the analysis of the sub-ject, the following notable issues appeared. The only organisation who publish figures on and analyse the development of the problem is FSR. A close inspection of FSR’s annual analyses shows that the analyses are inadequate as they only include figures from audited companies, which constitute approx 66% of all class B enter-prises in financial year 2014, and the analyses are characterised more by the need to support a political agenda than to provide objective information about the problem. An examination of data received from the Danish Business Authority shows that the Authority has identified more than 4,100 illegal loans in 2014 in companies not audited. This illustrates a so far unknown part of the problem. Based on the figures from ERST, the issue of hidden illegal loans is assessed to be somewhat less significant than described by FSR in its analyses; however, more illegal loans have been observed than estimated by FSR. Overall, we assess the reason for raising illegal loans to be twofold: intentional and uninten-tional loan arrangements. A number of individuals raise the loans intentionally to postpone or attempt to avoid paying taxes, alternatively to raise funds in an easier way than by borrowing funds from a bank, which may be difficult for example in connection with the financial crisis. Unintentional arrangements arise in small enterprises with limited financial management and overview or with lack of professional capacity, which may result in unfortunate arrangements. Therefore, illegal loans will probably always exist in future as there will always be business own-ers who will either try to cheat the system or who are not fully aware of all the rules. Other rules, follow-up methods, etc. are required to eliminate the problem and that will not happen for years to come.