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  #41  
Old 12.07.2021, 19:25
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Re: Sale Proceeds of Sale of a Building drawn out of company

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I am a 50% shareholder and was director of the company at the time.

My mother (1st director) transferred about chf 560,000 from the company account to my personal Swiss account in Oct 2015.
I was not aware until March 2016.
If I pay those back to the company then surely no tax implications as just a loan from the company to me.
This is something I have done (declared a payment as a loan) and was cleared by the tax office.
The problem could be the amount of time that has elapsed. Mine was paid back within 12 months of the loan being made.
Normally payments from the company should be accompanied by documentation explaining what the payments are and how they are made, e.g. loans, dividends etc. If you're no longer a director, it could be you have no control any more. If you 'pay the money back' this could also be seen as an unwanted/unsolicited payment.
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  #42  
Old 12.07.2021, 19:25
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Re: Sale Proceeds of Sale of a Building drawn out of company

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You are entitled to your opinion, you are the one paying for it. Get a lawyer or continue your DIY, it’s up to you.

I’m done with the fairy tales.
I am actually trying to find out if it is true that a share capital return with surplus is not subject to tax as a capital gain?

And if it is possible to return the funds that were put in my personal bank account from the company and the company does not then have to pay any witholding tax?
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  #43  
Old 12.07.2021, 19:37
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Re: Sale Proceeds of Sale of a Building drawn out of company

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I am actually trying to find out if it is true that a share capital return with surplus is not subject to tax as a capital gain?

And if it is possible to return the funds that were put in my personal bank account from the company and the company does not then have to pay any witholding tax?
Yes, that would be free of CGT

No, as you have been told several times something else happened & a taxable event occurred
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  #44  
Old 12.07.2021, 19:38
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Re: Sale Proceeds of Sale of a Building drawn out of company

I made an undocumented dividend distribution, came to do my taxes and retrospectively changed my mind and accounted for it as a loan. I repaid the loan, the company was then sold. No problems with the tax authorities although no-one asked me for detailed information. Like I said, this was done within one year which makes the accounting easier.

Last edited by Landers; 12.07.2021 at 21:33.
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  #45  
Old 12.07.2021, 20:11
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Re: Sale Proceeds of Sale of a Building drawn out of company

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Yes, that would be free of CGT

No, as you have been told several times something else happened & a taxable event occurred
Thank you for replying.

Are you saying that the fact that the transfer from the company to the personal accounts occured, that that was the event?
But those transfers were "illegal distributed funds" and so if returned could not be deemed to not be a distribution?
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  #46  
Old 12.07.2021, 20:21
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Re: Sale Proceeds of Sale of a Building drawn out of company

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Thank you for replying.

Are you saying that the fact that the transfer from the company to the personal accounts occured, that that was the event?
But those transfers were "illegal distributed funds" and so if returned could not be deemed to not be a distribution?
Yes, it happened several years ago so can't be sorted before the tax year ends.

Nothing illegal, funds were distributed & not immediately returned so you clearly accepted the distribution at the time & even some months later.

Looks like you even spent this 'illegal distribution' that would sound like money laundering to me. Don't go there......
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  #47  
Old 12.07.2021, 21:39
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Re: Sale Proceeds of Sale of a Building drawn out of company

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Yes, it happened several years ago so can't be sorted before the tax year ends.

Nothing illegal, funds were distributed & not immediately returned so you clearly accepted the distribution at the time & even some months later.

Looks like you even spent this 'illegal distribution' that would sound like money laundering to me. Don't go there......
Company made a loan, debtor uses loan for some purposes, repays loan later. Nothing inherently wrong with that. Doesn't sound like laundering at all to me.

The paper trail of how that money has been accounted for will limit what can be done. e.g. if the OP has made a tax return listing the money as an asset (instead of the share) instead of a liability as a loan.
Also of course, how the company has accounted for that money, e.g. accounting for it as a distribution with accompanying dividend certificates if required. Sounds like things have been done so loosely that some amount of retrospective covering up might be able to be done but you've got to be careful.
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  #48  
Old 12.07.2021, 23:42
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Re: Sale Proceeds of Sale of a Building drawn out of company

You are not clear why the accountant is asking for the money. If the tax being claimed is 35% it sounds like it is being treated as a dividend. Contact the accountant and ask him / her to confirm

If you don't agree it was a dividend because you think it was't authorised properly, you need to understand if you can go back and change that event i.e. cancel it and demand all people received money pay it back to the company.

However as others have said going back and changing that so long after the event sounds difficult - you would need specialised legal advice which is going to cost
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  #49  
Old 12.07.2021, 23:45
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Re: Sale Proceeds of Sale of a Building drawn out of company

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Company made a loan, debtor uses loan for some purposes, repays loan later. Nothing inherently wrong with that. Doesn't sound like laundering at all to me.

The paper trail of how that money has been accounted for will limit what can be done. e.g. if the OP has made a tax return listing the money as an asset (instead of the share) instead of a liability as a loan.
Also of course, how the company has accounted for that money, e.g. accounting for it as a distribution with accompanying dividend certificates if required. Sounds like things have been done so loosely that some amount of retrospective covering up might be able to be done but you've got to be careful.
I actually did not need to sell the building.
I actually did not need the monies at the time.

The sale proceeds of the building were not needed by I, my mum or her husband.

The reason that there were two transactions is because it was discovered that there was a legal charge on the property of chf 200,000.
I was actually accused by mother and her husband of having stolen 200,000 chf. ; to the extent that they went to my safe deposit box at the bank to check if I had put 200,000 chf in it.
It turned out to be an old charge for a loan that had been cleared by the previous owners.

In July 2016:
I demanded that any sale of the building was stopped until this charge was cleared up.
I demanded that the building be sold for no less than chf 1,600,000 as had a valuation of chf 2,250,000.
I stated that the monies from the sale of the building must remain in the company bank account and the company would then be put into voluntary liquidation to avoid tax for the shareholders.
I put this in writing by recorded delivery because she denies agreements and lies and unfortuantely her husband goes along with her and he has admitted to me that "she is my wife and have to go along with her".

My mother, as first director, continued with the sale and sold it in August 2016 for chf 1,350,000.
However the money transactions took place in August 2016 and February 2017. Two transactions because of the clearing up of the charge.
We are now in 2021.

I now realise that as soon as I was aware that my mother had transferred the monies to my, her and her husbands account should have returned those monies to the company.
I left them in my bank account and only moved them when the bank account was being closed because I had made myself non resident.

My objective now is to see if the monies transferred can be considered a loan and if so, I can get all the shareholders ( I, mum and her husband) to pay the monies back to the company as repayment of the loans.
Then put the company into voluntary liquidation and get the monies out without being subject to tax.

Yes a Fairy Story !
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  #50  
Old 13.07.2021, 02:48
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Re: Sale Proceeds of Sale of a Building drawn out of company

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My objective now is to see if the monies transferred can be considered a loan and if so, I can get all the shareholders ( I, mum and her husband) to pay the monies back to the company as repayment of the loans.
Then put the company into voluntary liquidation and get the monies out without being subject to tax.
So you are going to forge a serious of loan agreements that should have been drafted by a lawyer several years ago…. Get your mother, who according to you is not in a fit state to act in her own interests plus her husband to go along with it… And most hilarious of all you expect a third party who has no interest in the outcome, the company’s accountant, to front it up in a voluntary liquidation….

The tax authorities are professionals and they fully expect people to play silly buggers when it comes to something like this, so they will want to review the bank transactions for 18 - 24 months before they sign off on it. And when they do you are busted! Don’t expect a professional accountant is going to let himself get drawn into this. You can expect that he will take all necessary steps to protect himself against such a situation, including throwing you under the bus.

BTW, since this is a property company, not a trading company, expect that the tax authorities will take the view that gains from the disposal of property is income and should be taxes as such in the company and any distribution out of it should be treated as income in the hands of shareholders and taxed again as such. So double taxed rather than avoiding taxes.

And another one, does the company’s M&A authorize the company to extend credit to directors and shareholders? Unlike say UK companies, Swiss companies articles are very specific and granting loans to directors is not common and must be specifically authorized at a minimum.
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  #51  
Old 13.07.2021, 06:45
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Re: Sale Proceeds of Sale of a Building drawn out of company

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Yes a Fairy Story !
It's not a fairy story and I think you are not being completely honest in the way you have outlined the events. The money was transferred to you and you wanted to keep it and indeed seem to have spent some of it (though you keep glossing over this). You admit that you even ignored requests to pay it back, to the point where you are now finally being pursued via the courts. Sounds like that for whatever reasons you got greedy and/or desperate and are now dealing with the consequences.
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  #52  
Old 13.07.2021, 10:11
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Re: Sale Proceeds of Sale of a Building drawn out of company

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It's not a fairy story and I think you are not being completely honest in the way you have outlined the events. The money was transferred to you and you wanted to keep it and indeed seem to have spent some of it (though you keep glossing over this). You admit that you even ignored requests to pay it back, to the point where you are now finally being pursued via the courts. Sounds like that for whatever reasons you got greedy and/or desperate and are now dealing with the consequences.
I still have the money in a Swiss Franc account and in gold bars in Thailand where I have been living.
I moved the Swiss Francs to Thailand because I was forced to close the Swiss Bank account because I had become non-resident.

I admit that thinking back, I would have been better off just closing the bank account and transfering the balance, that included the payments put in from the company by my mother back to the company account. That was my mistake.
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  #53  
Old 13.07.2021, 10:14
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Re: Sale Proceeds of Sale of a Building drawn out of company

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So you are going to forge a serious of loan agreements that should have been drafted by a lawyer several years ago…. Get your mother, who according to you is not in a fit state to act in her own interests plus her husband to go along with it… And most hilarious of all you expect a third party who has no interest in the outcome, the company’s accountant, to front it up in a voluntary liquidation….

The tax authorities are professionals and they fully expect people to play silly buggers when it comes to something like this, so they will want to review the bank transactions for 18 - 24 months before they sign off on it. And when they do you are busted! Don’t expect a professional accountant is going to let himself get drawn into this. You can expect that he will take all necessary steps to protect himself against such a situation, including throwing you under the bus.

BTW, since this is a property company, not a trading company, expect that the tax authorities will take the view that gains from the disposal of property is income and should be taxes as such in the company and any distribution out of it should be treated as income in the hands of shareholders and taxed again as such. So double taxed rather than avoiding taxes.

And another one, does the company’s M&A authorize the company to extend credit to directors and shareholders? Unlike say UK companies, Swiss companies articles are very specific and granting loans to directors is not common and must be specifically authorized at a minimum.
It looks as though the appointed administrator has treated the payments made as loans to the shareholders.
This might make for a better outcome.
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  #54  
Old 13.07.2021, 10:20
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Re: Sale Proceeds of Sale of a Building drawn out of company

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I still have the money in a Swiss Franc account and in gold bars in Thailand where I have been living.
I moved the Swiss Francs to Thailand because I was forced to close the Swiss Bank account because I had become non-resident.

I admit that thinking back, I would have been better off just closing the bank account and transfering the balance, that included the payments put in from the company by my mother back to the company account. That was my mistake.
Your first post says you moved the money to someone else’s private account in Thailand.
Post #21 says you were living in Thailand at the time.

Why didn’t you move it to your own account in Thailand?
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Old 13.07.2021, 12:16
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Re: Sale Proceeds of Sale of a Building drawn out of company

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It looks as though the appointed administrator has treated the payments made as loans to the shareholders.
This might make for a better outcome.
In that case ask the administrator to clarify why you are being asked for 35% tax - you need to clear on that before having a clue how to proceed. Also ask what is happening with the other shareholders

Separately if you received a loan the company should’ve charged you interest on it. If the company is not charging you interest I would assume the tax authorities might calculatethe interest rate you should’ve paid and say that it had been gifted to you. In other words tax you on it
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  #56  
Old 13.07.2021, 13:26
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Re: Sale Proceeds of Sale of a Building drawn out of company

If we look at your 4 year old thread, you were offered 50% of the shares in the company of the company for 750k, you clearly did not think it was a bargain with a value in excess of 1.5 million, therefore the sale of the property for 1.35 million does not look odd at all.

The price paid in 2004 seems way too low if it was really worth what you claim, remember the building is old & repairs in CH are very expensive. Replacement is usually cheaper than a full renovation.
https://www.englishforum.ch/finance-...s-company.html

Being a landlord was never easy
https://www.englishforum.ch/daily-li...itzerland.html
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Old 13.07.2021, 13:46
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Re: Sale Proceeds of Sale of a Building drawn out of company

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So you are going to forge a serious of loan agreements that
They wouldn't be forgeries.
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Old 13.07.2021, 14:14
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Re: Sale Proceeds of Sale of a Building drawn out of company

Cashboy it‘s time to get a grip.

You‘ve had a lot of free advice here and your tale is sad and at times very odd (eg how did your mother access your safe deposit box? Gold bars etc.) but, as I see it, this has gone as far as it can here.

Either bite the bullet and get professional legal and tax advice. Be prepared to pay CHF10,000 and more. Or take your gold bars and run for it.

I have previously pointed out that your health at at serious risk here. Stress is a killer…
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Old 13.07.2021, 15:14
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Re: Sale Proceeds of Sale of a Building drawn out of company

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Your first post says you moved the money to someone else’s private account in Thailand.
Post #21 says you were living in Thailand at the time.

Why didn’t you move it to your own account in Thailand?
I was in Switzerland at the time when the bank told me I needed to close the bank account within two weeks.
I had only a Thai baht account and GB account in Thailand.
It made more sense to keep the money in Swiss Francs and if I need to send the tax back on it it is already in Swiss Francs. Also the currency exchange really knocks the value down from the rates they give you.
Thai secretary opened a Swiss Franc Account and the funds were transferred.
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Old 13.07.2021, 15:36
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Re: Sale Proceeds of Sale of a Building drawn out of company

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Cashboy it‘s time to get a grip.

You‘ve had a lot of free advice here and your tale is sad and at times very odd (eg how did your mother access your safe deposit box? Gold bars etc.) but, as I see it, this has gone as far as it can here.

Either bite the bullet and get professional legal and tax advice. Be prepared to pay CHF10,000 and more. Or take your gold bars and run for it.

I have previously pointed out that your health at at serious risk here. Stress is a killer…
My mother had access to my safe deposit box because I had given her authority when I opened the safe deposit box.
I actually kept chf 25,000 in it for total emergencies for the building that she was not aware of.
When she saw the 25,000 chf she said that I was always saying that I had no money.

I usually thrive on stress but must admit this one has been quite bad.
It is alright for you expats in Switzerland on a mean average of chf 87,000 per annum talking about paying a chf 10,000 for tax advise.
In Bangkok the average salary is 25,500 baht per month => chf 9560 per annum.
I am living like a king and stress free on 50,000 baht => chf 1,560 per month
And oddly enough my mother told me that preparing the annual accounts, corporation tax returns and my salary / AVS for the Swiss Company SA that I was doing annually was a chf 200 to chf 300 job per annum.
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