Skatteflyktslagens tillämpning och förenlighet med EU-rätten

Sammanfattning: The legal consequence of the application of the tax evasion law is that an otherwise civil legal transaction is left without consideration when assessing the base for taxation. The law is an infringement upon the taxpayer that has performed the legal transactions. The application of the tax evasion law is dependent on the prerequisites from the 2 § of the law, the so called general clause. The clause contains four necessary conditions that all need to be fulfilled to apply the law; the tax benefit, participation, intention and that the procedure shall conflict with the purpose of the law. The conditions are quite vague and leaves room for interpretation in each case. It is a balancing act between rule of law and efficiency and the result varies. The Supreme Administrative Court have tried the tax evasion law in several cases and there are often hard assessments that must be made. Especially the purpose condition seems hard to administer and interpret, there are however tools for the interpretation in the court practice of The Supreme Administrative Court and within doctrine. The tax evasion law might conflict with EU-law according to doctrine. It could be interpreted to be discriminatory against international transactions but has never been tried in The European Court of Justice. It is primarily the condition of intention that might be too harsh relative to EU law because EU law stipulates that only artificial transactions should be actionable. It also seems that the tax evasion law might be deemed to conflict with the principal of proportionality in The European Court of Justice. This because the requirements of rule of law are a part of the judicial proceedings which follows from EU case law. There are several countries within the EU with similar general clauses against tax evasion which speaks to the fact that general clauses against tax evasion might be generally acceptable within the EU.