Rätt skatt på rätt sätt? Åtgärder mot skatteflykt och historien om det månghövdade monstret – chimären om frivilligt företagsansvar i beskattningen

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Författare: Jon Meltzer; [2011]

Nyckelord: Tax law; skatterätt; Law and Political Science;

Sammanfattning: The thesis asks two questions. The first question is how tax avoidance is dealt with in the following areas: Special legislation that aims to prevent circumvention of tax law and the exemption from the prohibition against retroactive tax law in 2 ch. Art.10 2 para. 2-3 sent. regeringsformen (1974:152), both as phenomena, measures of the Swedish Tax Agency against tax evasion, the Tax Avoidance Act (Lag (1995:575) mot skatteflykt) and genomsynsmetoden (a method of tax law interpretation where legal acts that are valid under civil law are rejected if the transactions were carried out solely due to tax reasons). The second question is if principles of Corporate Social Responsibility could be implemented in the field of taxation and if this could decrease tax avoidance transactions. Regarding the first question, it is initially stated that other factors, apart from the above described measures against tax avoidance, are of importance for the extent of tax avoidance transactions, such as the design of the tax system and the size of tax rate, even if the meaning of the latter can be disputed. The Swedish Tax Agency works in different ways to cease tax avoidance; on its website the agency publishes tax arrangements, which the agency finds to be incompatible with current law in place. In 2009, the agency launched a risk classification project where those companies that employ “advanced” tax planning strategies will be deemed to have a high risk and therefore be under closer inspection than others (it is optional for companies to participate in the project). Additionally, the agency has presented a proposal for introducing disclosure rules. All measures have been criticized, from different points of view, where the most flagrant critique is that the measures will reduce the individual taxpayer’s rights. Even if the critique, to some extent, is justified the fear of neglected rights should not be exaggerated. 2 ch. Art.10 2 para. 2-3 sent. regeringsformen enables quick legislation to discourage tax schemes, which should be necessary in those cases when the tax scheme results in a major tax revenue loss. However, there is a noticeable risk that such legislation will be unclear and therefore bring less stability to the tax system. Special legislation that aims to prevent circumvention of tax law is often said to be inadequate against tax avoidance transactions, but it can be difficult to unite general measures with the requirements of rule of law and predictability; the Tax Avoidance Act and genomsynsmetoden has both been scrutinized in the doctrine, and is often criticized for the lack of rule of law and predictability. However, the thesis finds that new court practice shows that genomsyn is not used anymore, if ever, by the Supreme Administrative Court and court practice regarding the Tax Avoidance Act displays that contentions about it being impossible to predict when the act is applicable, is not nuanced. Nonetheless, the thesis shows that the construction of the Tax Avoidance Act brings a risk that rule of law could be affected in such a negative way that the act can be questioned by principal reasons. The legislative history is substandard in regards of the actual effect of the Tax Avoidance Act, and in the light of its construction, this is conspicuous. It is hereby suggested that a new study is performed that deals with those issues, which also could sort out some questions where the legal position is not clear, ascribed to court practice, such as what weight the passivity of the legislator should have on the implementation of the Tax Avoidance Act. Regarding the second question, it is declared that the principles of Corporate Social Responsibility do have bearing on the field of taxation, but it cannot be expected that companies themselves put limits to their tax planning, mainly as there is no economic incentives and hereby Corporate Social Responsibility cannot have a major function in the area of tax avoidance. Nevertheless, companies have taken an interest in the connection between ethics and taxation. Thus, the thesis proposes that disclosure rules, which would be helpful for the state in getting knowledge of new tax techniques and tax schemes, are made optional to follow. Voluntarism could be needed, in order not to compromise the efficiency of the free market, and there is a real chance that enough companies choose to inform about their tax techniques to ensure that the rules will have sufficient impact.

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