No, advance payments on future claims to profits are not permitted (6 Ob 84/17x; 6 Ob 128/17x).
The profit of a GmbH may not be distributed before the annual financial statements have been adopted and a resolution on the appropriation of profits has been passed.
A shareholder who receives a payment (e.g. a loan) from the GmbH must ensure that the reason for the payment stands up to a third-party comparison. The assessment requires a comparison of whether a similar transaction (e.g. loan agreement) would have been concluded by a prudent businessman with a third party at the same conditions, i.e. if no shareholder (no third party associated with a shareholder) would have benefited from it (third-party comparison).
Payments by the company to a shareholder that would not have been made to a third party, or would not have been made on such favourable terms, are unlawful and must be repaid by the shareholder without delay. The limitation period is five years, but in the case of unjust enrichment it can be up to 30 years (6 Ob 112/22x).
Pursuant to § 83 (1) of the Company with Limited Liability Act (GmbHG), a shareholder cannot be obliged to repay what he has received in good faith as a share of the profits. However, if resolutions on the appropriation of profits have not been properly adopted, there can be no question of good faith.