Gränsöverskridande förlustutjämning - ett nödvändigt ont

Sammanfattning: Today’s society is globalised with international trade as a consequence. In our part of the world the EU with it’s advantages and disadvantages concerning the free movement of capital, people and business affects us all, but also our taxes. Companies, big and small are in the centre of the cross-border trade with their expansion into new markets. Business adventures of this kind can generate increased profits over the long run, but are marked by huge investments and losses in the start up years. Another risk is cross-border losses or rather the no-existence of the utilization of these kinds of losses. This is no small thing. In fact, 60 percent of European companies revealed in a survey that this plays a vital role in their expansion plans and can in some cases mean that the company decides to stay at home. In all of the member states losses are utilized in domestic situations but no possibilities exist in the case of cross-border establishment. The last year has seen the demise of the long planned directive proposal CCCTB which would have meant the end of these kind of tax problems. On the other hand the courts are still busy with this matter. Both the ECJ and the Swedish High Administrative Court have delivered several judgements, which have been scrutinized by this paper. The conclusion is that the requirements that were introduced by the ECJ in the famous case of Marks and Spencer are still holding. The grounds for justification is on the other hand evolving with the unexpected return of the fiscal cohesion ground that the ECJ now accepted in two judgements. The Swedish cases were all delivered without any requests for preliminary rulings from Luxembourg. This paper condemns this mentality, which is a threat to community law and its coherence. The danger is that we will have community law and a Swedish version of community law. With no directive proposal and unsatisfying case law this paper presents some alternative legislative proposals that are believed to solve the problem. The proposals will mean that Sweden alters its rules unilaterally which will render in less income for the treasury in the short run, but the advantages of this kind of rules will in the long term have significant advantages that will outweigh the immediate downsides.