Hybrida missmatchningar med hybridföretag - En EU-rättslig analys av de svenska bestämmelserna avseende klassificering av företag samt ränteavdragsförbudsreglerna

Sammanfattning: The tax treatment of different entities, within a jurisdiction, differs. If an entity is classified as transparent for tax purposes in one state and as opaque in another state, hybrid mismatches can arise. In order to neutralize the effects of hybrid mismatches, new provisions, prohibiting interest deduction, were introduced in Sweden on 1 January 2019. The regulation constitutes an implementation of two EU-directives; ATAD and the amendment directive. The aim of this thesis is to examine if the Swedish provisions regarding classification of foreign entities and the new provisions regarding interest deduction are consistent with the freedom of establishment, ATAD and the amendment directive. The freedom of establishment implies that all restrictions regarding establishment of commercial activities in other member states of the EU are prohibited. Thus, different treatment of cross-border situations is prohibited. The cross-border situation should be compared to an objectively comparable domestic situation. However, a restriction can be justified on certain grounds. Further, the restriction must be proportionate and appropriate to ensure the attainment of the objective in question. In Sweden, foreign entities are classified through an assessment consisting of two steps. Initially, it must be established that the company is a foreign legal entity. If this is the case, the company is classified as a taxable entity. However, the foreign legal entity is classified as transparent if the income from the company is taxable in the hands of the partners. In the thesis it is found that the classification method, which is dependent on the taxation in another state, probably does not constitute a restriction on the freedom of establishment. However, since the ECJ has not yet examined a similar provision, this cannot be stated with certainty. It is also found that, if the provision constitutes a restriction on the freedom of establishment, it is justified by “the need to safeguard a balanced allocation of the power to tax”. Furthermore, the provisions prohibiting interest deduction are a correct implementation of ATAD and the amendment directive. The provisions state that a deduction for interest shall be denied in Sweden if deduction for the same interest expense is granted in another state or if a corresponding inclusion for tax purposes does not occur in another state. The provisions apply to associated enterprises. In the light of the identified ECJ-rulings, it is concluded that the provisions constitute a restriction on the freedom of establishment. Furthermore, it is concluded that the restriction cannot be justified.