Tips regarding shareholder loans
Particularly for young companies or companies in a crisis situation, liquidity is often tight. To remedy the situation and guarantee the solvency of a stock corporation (AG), the shareholders can grant a loan or waive partial wages as a loan to the company.
If you as a shareholder grant a loan to the AG, this is called a shareholder loan.
Shareholder loans can be converted into shares during a later investment round/capital increase. The important thing is that the price calculation of any conversion is defined from the beginning and that this has already been noted in the loan agreement. Moreover, various legal provisions regarding commercial and tax law must be observed.
What types of loans are there?
There are loans receivable, where the AG grants a shareholder a loan. And there are passive loans, where a shareholder grants the AG a loan.
What specifically do you need to bear in mind regarding loans receivable?
If the shareholder is not granted a loan at market conditions, this may infringe on the prohibition on repayment of contributions to shareholders. This prohibition stipulates that shareholders do not have the right to reclaim capital paid in. If the AG was also to grant the loan to an independent third party at the same conditions, then this does not necessarily qualify as a breach. And the minimum rates of the Swiss Federal Tax Administration must be adhered to. This is to prevent hidden profit distributions that would have to be declared under tax law as income by the “borrower.”
What do you need to bear in mind as regards passive loans?
The passive loan is not required to accrue interest. If an interest rate has been agreed, then the maximum rates set by the Swiss Federal Tax Administration must be adhered to. Excessively high interest rates could in turn be declared as a hidden profit distribution and taxed accordingly. Moreover, if the shareholder reclaims the loan when the AG has fallen on hard times, there is no creditor preference.
Below, you will find our template for a shareholder loan (without settlement option in the case of a capital increase).