Kapitalvinstbeskattning efter utflyttning till Spanien - Tillämpningen av tioårsregeln och eventuella utmaningar för framtida lagstiftning

Sammanfattning: A survey carried out by the independent organization Swedes Worldwide in 2015 showed that over 90 000 Swedes spent more than six months a year in Spain. These emigration movements sometimes affect the Swedish tax base since individuals are no longer liable to pay income tax on all incomes and only become liable to pay income tax on incomes having a source in Swedish territory. Compared to other countries Sweden has a very high tax rate on capital gains. To avoid the high tax pressure it has been discovered that some individuals temporarily settle down in a country that applies a lower tax rate and, while being liable to pay tax on all of their incomes in that country, they alienate company shares and other financial instruments. To prevent fictitious arrangements like these, Sweden applies the ten-year-rule, according to which an individual who has been residing in Sweden at some point during the previous ten years before the alienation of such financial instruments, shall be liable to pay tax on the capital gains in question in Sweden. The ten-year-rule has been criticized for being ineffective since the majority of the tax treaties that Sweden has entered with other countries restrict its applicability. To solve this problem the Swedish Tax Agency in November last year put forward a proposition to replace the ten-year-rule with rules on exit taxation. Given the circumstances, the purpose of this essay is to examine the application of the ten-year-rule when an individual moves from Sweden to Spain and also to analyze whether the ten-year-rule fulfills its purpose in this situation. The future of the ten-year-rule, in connection to the proposition of exit taxation, is also discussed. Covering aspects of Swedish and Spanish national taxation law, international tax treaty law and EU law it is discovered that the application of the ten-year-rule is restricted in every situation where Spanish national law expresses a competing tax claim. The only situation in which the ten-year-rule has any impact is when the taxpayer, according to national law, isn’t residing in either Sweden or Spain. This is due to the fact that tax conventions drawn up in accordance with the OECD Model Tax Convention is only applicable when the taxpayer in question is a resident of one or both of the contracting states. Therefore no tax convention prevents the application of the ten-year-rule in this situation. The proposition to replace the ten-year-rule with rules on exit taxation might be a possible solution to prevent tax treaties from restricting Swedish tax claims on capital gains. This is because the application of the national exit taxation rules precedes the point where the individual moves and a foreign competing tax claim would arise. However, the scope of the suggested exit taxation regulation needs to be narrowed in order to be compatible with the principles of free movement prescribed by the Treaty of the Functioning of the European Union.