Hybrida missmatchningar i Sverige och EU - Hur klassificeringen av finansiella instrument påverkar beskattning av gränsöverskridande transaktioner

Sammanfattning: In a globalized society border-crossing transactions increase in numbers, which also increases the opportunity for tax arbitrage. A common way to exploit differences in regulations and conduct advance tax planning through, is the use of hybrid financial instruments. This essay aims to account for these instruments and how they are regulated. Hybrid instruments are on the border between dept and equity which implies that differences in taxation of the same transaction arise between different nations. This also leads to that the return or payments connected to these instruments classifies as interest or dividend. This results in hybrid mismatches which often are situations with double deductions or with deduction without inclusion, in other words that a deduction is held for the same payment in two countries or that a deduction for a payment is given in one state without that the corresponding income is taxed in the other state. Interest and dividend are lacking definitions in Swedish taxation law which further complicates the situation. Following the problems of hybrid mismatches border-crossing character, international harmonization of both regulations and classification concerning hybrid financial instruments is required. There are different interstate alternatives for regulation. The foundation for these are OECD’s BEPS initiative which includes recommendations for how hybrid mismatches should be regulated in national law. The EU anti-tax avoidance directive can be said to have captured the essence of BEPS and made the implementation of these rules binding for the members of the EU. Following the above, the Swedish government during 2018 presented a proposition of new rules of taxation for the business sector. This proposition entails rules for interest deductions in border-crossing situations for associated corporations which aims to prevent some hybrid mismatches. In addition to these regulations, tax treaties affect the use of hybrid financial instruments. During 2017 a multilateral treaty was presented by the OECD which aims to solve conflicts between tax treaties concerning classifications of hybrid instruments and in this way prevent that situations with hybrid mismatches arises.