Förtäckta förmåner i fåmansaktiebolag

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

Sammanfattning: Covert benefits have long been discussed in terms of their management, particularly in tax law. In closely held companies, the occurrence is common, and the essay therefore focuses on rules concerning those kinds of companies. The Companies Act defines covert benefits as "another business event." The term is intended to be compared with the three usual transactions in limited liability companies: dividends, acquisitions of own shares, and reduction of capital as repay¬ment to the shareholders. Transactions are treated in chapter 17. ABL, in the form of rules regarding the transfer of value, which are beneficial transfers from the company to another subject. A penalty for illegal transfers of value is according to the general rule that the value shall return. Covert benefits are problematized in civil law mainly in cases where they are illegal value transfers. If the tied capital is covered and the com¬pany takes into account the protection of minority shareholders, a covert benefit is to be classified as lawful and accepted. In tax law, covert benefits are treated first and foremost through practice. Between the years 1976 - 2000 there was a legislation, which codified earlier practice and treated numerous typical cases of covert benefits. When the rules were liquidated in 2000, the solution was to be found through general rules and the older rulings were once again valid. The so-called 3:12 rules, which were applicable in the stop legislation, were codified by chapters 56-57 IL and they deal with the taxation situation of closely held companies. Some types of benefits have been resolved by practice in recent years. Those benefits are; residential-, automobile-, holiday accommodation- and boat benefits. Covert benefits are divided, according to tax law, as either covert salary or covert dividend. Problematization in the essay concerns cases where the beneficiary is both owner and employee. Before the tax reform in 1991, it was often more profitable to denote benefits as salary for the beneficiary. After the reformation of the stop legislation, a beneficiary often got more benefit by denoting a transaction as a dividend. There exists a presumption now, at least in closely held companies, that the benefits are paid as salary, despite the fact that the benefit theoretically also may be paid as dividend. In my case study, I show a tendency, for courts, to systematically and sometimes without discretion, designate covert benefits as covert salary. The only benefit that is considered as disguised dividend, are cases concerning interest. There is, in my opinion, some ambiguity in this area, particularly in the breakdown of covert salary and dividend. There are also discrepancies between some expressions when comparing corporate and tax law, which in theory should correlate.

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