Chris is an Insolvency Practitioner regulated by the ICAEW since 2014,.
He is experienced in contentious insolvency with excellent analytical skills and strong knowledge of both general and technical insolvency matters.
An overview of the implications of overdrawn directors’ loan accounts during company liquidation, including potential consequences for directors and the steps to address such situations.
How is an Overdrawn Director’s Loan Account Handled in Company Liquidation?
In a company liquidation, an overdrawn director’s loan is typically expected to be repaid by the director to the company[1]Trusted Source – GOV.UK – Directors’ Loans.
Liquidation means that the company is closing down permanently, and its assets are sold off to pay creditors. During this process, a liquidator is appointed to manage the sale of company assets, with the intention of gaining the best possible return for creditors. This involves valuing and selling all of the company’s assets, including recoverable amounts like those owed through an overdrawn DLA.
In my experience, many directors fail to understand this and are surprised to find the insolvency practitioner whom they appointed to manage the liquidation asking them to repay the ODL. It’s important to remember that while a limited company protects directors from business debts, this doesn’t extend to personal debts such as an ODL.
When a Director’s Loan Account is in Credit During Liquidation
If your Director’s Loan Account (DLA) is in credit at the time of a company’s liquidation, it means that you have lent money to the company rather than withdrawing funds. In such scenarios, the director is positioned as a creditor rather than a debtor.
A DLA in credit means you, therefore, have a claim on the company’s assets similar to other creditors, albeit typically as an unsecured creditor unless otherwise specified by prior agreements. The director with a credited DLA will be paid alongside other unsecured creditors, which generally occurs only if there are sufficient funds remaining after settling higher-priority debts.
Given the nature of liquidation, where assets are usually insufficient to cover all outstanding debts, there is a possibility that a director with a credited DLA might not receive full repayment.
Going Through Liquidation with an Overdrawn Loan Account
First, the liquidator (insolvency practitioner) will first ask you to repay the overdrawn amount via a formal demand for payment. If the situation allows, they may agree on a repayment plan. However, if repayment isn’t possible or if a director refuses to comply, the liquidator has the authority to take further action, which can include legal proceedings.
It is important to note that you cannot write off the directors loan or offset it against future dividends once the company is in liquidation. Your obligations to settle the overdrawn DLA are prioritised.
If you have an overdrawn DLA, I advise you to seek professional advice from an insolvency practitioner such as ourselves. We can help you understand your options and develop a plan to repay the debt.
What are the Possible Consequences of Directors Loan Accounts in Liquidation?
Failing to repay an ODLA can lead to several serious consequences, as I’ll explain:
Firstly, the liquidator has the power to sue you to recover the funds. This can result in a court order against you, compelling you to repay the debt. If you’re unable to do so, this could lead to personal bankruptcy proceedings. However, practically speaking, liquidators often take a “commercial view” to any recovery and are unlikely to pursue you to bankruptcy if there is no reasonable chance of actually recovering the money.
Moreover, there’s a legal obligation to treat all creditors fairly during the liquidation process. If you’ve taken company money for personal use and can’t repay it, you’re effectively putting your interests above those of other creditors. This can lead to accusations of wrongful trading.
The Insolvency Service may also examine your actions closely. When a company goes into liquidation, an investigation is launched to determine why it failed. Should an overdrawn director’s loan account emerge as a contributing factor to the company’s financial troubles, you might be found partially accountable for its downfall.
If unfit conduct or misfeasance is discovered, directors can face disqualification for up to 15 years, which prevents them from acting as directors of any company.
How Overdrawn Loan Accounts Affect Creditors During Liquidation
Directors’ loan accounts mean less money is available to distribute, affecting the company’s ability to settle its debts fully.
This clearly has a direct impact on the company’s creditors, including suppliers, lenders, and even employees who may be owed money. In a situation where funds are limited, the repayment of an overdrawn DLA can mean that unsecured creditors receive a smaller portion of what they are owed, or in some cases, nothing at all
What Can Directors Do about a DLA in Insolvency?
Facing an overdrawn Director’s Loan Account during liquidation can be daunting, but there are several steps you can take to minimise or reduce these consequences.
Start by thoroughly reviewing the status of your loan account and documenting all transactions. A clear paper trail will be crucial for any discussions with creditors, liquidators, or legal advisors.
Appoint a licensed insolvency practitioner (LIP) early. We can offer you expert advice on the implications and guide you through the liquidation process. We can also assist in negotiating repayments or settlements that might be required to address the overdrawn account.
If possible, you should consider how to repay the overdrawn amount to the company. We can advise on structuring such repayments in a way that is manageable for you and legally compliant.
Seek Professional Assistance
If you are a director dealing with an overdrawn loan in liquidation and need guidance on the best course of action, we’re here to help. At Company Debt, we have a track record of supporting thousands of directors through complex financial situations.
Contact us: Use our live chat service during working hours for immediate assistance.
Phone: Call us on 0800 074 6757 for in-depth, expert advice.
Live Chat: During working hours, the live chat is always staffed by an experienced advisor
FAQs on Overdrawn Directors’ Loan Accounts and Insolvency
What Steps Should I Take If My Director’s Loan Account Is Overdrawn and We’re Approaching Insolvency?
Immediately seek advice from a licensed insolvency practitioner. We can guide you through the insolvency process, help you understand your obligations regarding the overdrawn loan, and explore all available options.
Can Overdrawn Directors’ Loans Lead to Personal Liability in Insolvency?
Yes, directors can be held personally liable for repaying overdrawn loan accounts in insolvency. This is because the overdrawn amount is considered a debt owed to the company that must be settled to distribute funds to creditors.
References
The primary sources for this article are listed below, including the relevant laws and Acts which provide their legal basis.
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