Pappa, jag vill ha ett företag! - Likformig och neutral beskattning vid överlåtelse av verksamheten i ett fåmansföretag?

Sammanfattning: In order to prevent owners of closely held corporations from transforming highly taxed salary income into lower taxed capital income, special rules exist for closely held corporations. These rules are known as the 3:12-rules and are found in chapter 57 of the Swedish income taxation act (inkomstskattelagen (1999:1229), IL). Only shares that are defined as qualified shares are subject to the 3:12-rules. According to chapter 57 paragraph 4 IL, a share in a closely held corporation is qualified if the owner or a relative is active in another closely held corporation, which is engaged in the same or similar activity. In 2010, the Supreme Administrative Court ruled in a few cases regarding “same or similar activity” and changed the interpretation of the term. Later rulings from the Supreme Administrative Court have confirmed this interpretation. This means that capital being managed in one corporation, but which is derived from a business in another corporation is engaged in the same or similar activity. The new interpretation means that an owner of qualified shares who transfers the ownership of his or hers business to a relative can end up paying a higher tax compared to if he or she would have transferred the ownership to a non-relative. When selling a business to a non-relative, it is possible to wait out the application of the 3:12-rules by letting the profit from the sale rest in a corporation during the transfer year and the following five years. If the person who has acquired the business, instead is a relative who is active in the transferred business, that type of procedure is not possible. This essay sheds light on this difference in taxation with regards to the 3:12-rules purpose of preventing highly taxed salary income to be transformed into lower taxed capital income, and the fundamental tax principles of similarity and neutrality. The meaning of these two principles is that similar cases shall, as far as possible, be taxed in a similar way and that taxes should not influence how the individual act. It is hard unify the purpose of the 3:12-rules with the principles of similarity and neutrality, because there is somewhat of a conflict of interest. My conclusion is that it should be possible to attain the same taxation result when the acquirer is a relative, as a transfer of the business to a non-relative, if certain conditions apply and are complied with. However, in order for the 3:12-rules to be able to attain its purpose, some shortcomings with regards to the principles of similarity and neutrality will have to be accepted.