Many small and medium-sized businesses have received a Bounce Back Loan (BBL). In fact 860,000 loans were approved in the first six weeks. These loans have been essential for businesses affected by the Coronavirus pandemic.
However, it’s important that you don’t inadvertently create a problem for yourself by not realising the potential consequences of what you do with this money.
HM Treasury have clearly warned that any misuse of the scheme could result in prosecution for fraud.
This article is to help you consider the implications of what you may already have done with your Bounce Back Loan or what you may be going to do.
Common terms & conditions that could trip you up
Bounce Back Loans are a debt – not a grant – and so come loaded with terms and conditions from the lender. Check these very carefully.
1. There’s only one application per ‘group’
If you’ve applied for more than one business that’s under common ownership or control then this is fraud
2. Do you have another Coronavirus loan?
You must not have already received a loan under the Coronavirus Business Interruption Loan Scheme (‘CBILS’), the Coronavirus Large Business Interruption Loan Scheme (CLBILS’) or the COVID-19 Corporate Financing Facility (‘CCFF’) – unless you are refinancing it in full with the Bounce Back Loan.
3. It’s not for personal use
The BBL is an alternative source of finance if you’ve been affected by the Coronavirus outbreak. It can be used for many expenses, such as working capital (things to keep the lights on like bills, running costs and wages) or investment, but it must support trading or commercial activity in the UK.
4. You cannot be in default under the terms of any other borrowing facility
If you are, whether it’s with the same lender or not, it will be deemed to be in default of the Bounce Back Loan.
Be particularly careful if your business needs any other source of funding during the life of the BBL taking any form of security, mortgage, charge, pledge, lien or encumbrance over its assets whatsoever. You must check this is allowed in the loan terms and conditions as often it is not.
Bounce Back Loans and fraud
The lines between what is and what isn’t company money can easily be blurred. Liquidators regularly deal with directors of insolvent limited companies who routinely use the company bank account as an extension of their personal bank account.
If you cannot pay back the loan when the time comes, your duly appointed liquidator, on behalf of the creditors, will investigate director conduct and any previous transactions. The liquidator will look at the Bounce Back Loan to understand what it was used for.
If the Bounce Back Loan was utilised for demonstrable company benefits then there will be no issues. If it was used to pay off existing borrowing where there was a personal guarantee attached, that may be a problem.
Misspending your loan
There’s been a number of articles written about Bounce Back Loans being used to fund luxuries such as ‘supercars’. Car Dealer Magazine have spoken to several top end car dealers, reported in its article of 21st June 2020, who all confirmed this definite trend.
One said “he’d sold cars to clients who had used Bounce Back Loan cash to fund part of the deals and said he believed businessmen had even used dormant companies to raise cash at low rates to splash out”.
The Daily Record have quoted a shop owner in Glasgow as saying, “so many businesses will die and the debt will die with them. Then there will be others that just don’t pay it back and will test the Government’s resolve in chasing them for it. If you’ve got that mindset it’s like free money.”.
This is most definitely not true and a very dangerous way to view the situation.
Money laundering
Don’t forget: your lender has a legal duty, as part of its Money Laundering obligations, to report to The National Crime Agency if they have a suspicion that you have obtained or you are using a Bounce Back Loan fraudulently. The matter would be investigated and you could face criminal prosecution.
Your accountant or bookkeeper has a similar obligation to report any suspicion of fraud.
Another relevant point is that a motor trader who is regulated as a ‘High Value Dealer’ (a business that receives the equivalent of 10,000 euros or more in cash for the sale of goods) has a similar legal duty.
Is your company solvent and why it matters?
The Bounce Back Loan was introduced to quickly and efficiently provide funding to businesses in difficulty due to COVID-19. This is not an opportunity to pay back loans from yourself to your business or to borrow money from the company.
Why?
If your business has trading difficulties, becomes insolvent and is not able to recover from that position then it could be placed in a formal insolvency process [link: ‘Your options…’ article]. If there’s a risk your company was ‘technically’ insolvent when you applied for the Bounce Back Loan but you didn’t know, you’ll be in breach of your terms & conditions.
If your company becomes insolvent from your subsequent actions after taking the loan – actions such as you taking a loan from the business – this will be classed as fraud.
How to find out if your company is insolvent?
Balance sheet insolvency – a company is insolvent if it does not have sufficient assets to discharge its debts and liabilities. In simple terms, is the total of what you owe more than you own? The easiest way of identifying this is if a company has positive reserves on its balance sheet
Cash-flow insolvency – when a company cannot make a payment when it is due. This will often be highlighted by a demand for payment by a supplier or lender the business is unable to meet.
Potential consequences of having an insolvent company
The key principal of insolvency law is that those owed money by the business must be treated fairly. For example, if ten people are owed £1,000 and the company has £1,000 then they should each get £100.
In some circumstances those owed money (the creditors) have a legal priority over other creditors.
Any payments by the business that don’t follow the correct legal priority may well be reversed if the business ends up in a formal insolvency process. Be careful not to make payments that could ultimately be reversed by the insolvency practitioner.
For example, a repayment of a loan to yourself in priority to others. This could apply to repayment of loans to family and business associates. If your business has received a Bounce Back Loan and you have ‘borrowed it’ for your personal use then you could legally have to pay back what you have borrowed.
This could put your personal assets at risk if you have spent the money.
Can you pay yourself a dividend or salary with a Bounce Back Loan?
Dividends
Martin Lewis of Money Saving Expert wrote a useful article on personal use of Bounce Back Loans. He asked the Treasury whether the loan can be paid as a dividend if a business has retained profits but is cash poor.
The answer to the question was ‘yes’.
However, a broader answer might have included a discussion on taking dividends from a company when the company might be deemed to be insolvent. A dividend paid from an insolvent company may also need to be paid back if the company enters a formal insolvency process.
Beware. If by making the dividend payment your company has become insolvent then you could similarly find yourself having to pay the dividend back.
Salary
Any salary taken via a PAYE scheme should be set at a reasonable level. An excessive salary would also be investigated by an insolvency practitioner during a formal insolvency process.
As Martin Lewis says in his Bounce Back Loans article, ‘it’s likely to be far trickier to argue that you can increase your salary (even to cover lost dividends) as these loans have to be used for the economic benefit of the company, not the individual’.
How our professional advice can help
We are here to help. If you have applied for or used a Bounce Back Loan inappropriately without realising then please seek advice as there are a number of things you can do to remedy the situation rather than wait to see if this ‘bouncing bomb’ will come back to haunt you.
Whether you could be investigated for fraud now or have to repay the money in the future if your business has trading difficulties and has to enter a formal insolvency procedure, it is far better to deal with the situation while you still can.
