Avdrag för markndsföringsbidrag - En studie av avdragsrätten i förhållande till korrigeringsregeln i 14 kap. 19 § IL

Sammanfattning: The Swedish Tax Agency came up with a position in 2019 regarding contributions where e.g. a parental company gives contribution to a subsidiary for e.g. marketing the parental company’s products, where they expressed that such contribution cannot be assessed solely with the support of the general deduction rule in ch. 16. Section 1 of the Income Tax Act, but such contributions must also be assessed together with the Swedish arms-length principle, the so-called adjustment rule. The thesis has focused on critically highlighting how it is in practice, mainly because the Swedish adjustment rule requires a contractual relationship. The questions have been partly whether the required connection between the expenses and the acquisition and retention of the income based on the general deduction rule will be assessed more strictly or gentler if the adjustment rule is going to be applicable in the assessment, and partly whether an application of the adjustment rule when assessing contributions is compatible with the freedom of establishment. The questions have been answered in such a way that when it comes to the application of the adjustment rule together with the general deduction provision, the supreme administrative court has stated the priority of the adjustment rule, but at the same time the rule requires a contractual relationship to be applicable. If there is no contractual relationship, the rule does not apply. Furthermore, if the rule could be applied, there is still room for business reasons, which is also supported by the rulings of the European Court of Justice and previous cases from the Swedish supreme administrative court. The second question whether an application of the correction rule when assessing marketing contributions is compatible with the freedom of establishment has been answered as if the EU Court of Justice has stated that the correction rule may constitute a restriction of the freedom of establishment but that it can be justified. A company should not be allowed to choose freely where it wants to tax its profits, but business reasons can nonetheless be invoked for the correction rule not to be applicable. With regard to the arms-length principle, the European Court of Justice has expanded the commercial reasons to also include financial ones, which means that the Swedish adjustment rule might not be compatible with EU-law, but at the same time there is room for commercial reasons. In summary, the Swedish adjustment rule should be compatible with EU law, but at the same time there is a risk that it is applicable to a significantly smaller extent. Furthermore, in a comparison with the EU Court's judgement over the Swedish targeted interest deduction limitation rules, the EU Court of Justice has determined that if both companies are covered by the Swedish group contribution rules, deductions may not be denied. Same principle could also apply to contributions because the deductions for such costs must be substantiated and show that they constitute costs for the acquisition of income unlike the interest costs, if the arrangements are not purely artificial arrangements and that the rule’s basic requirements are fulfilled.