Vilken vinst, vilken inkomst? - Det skatterättsliga förhållandet mellan resultatfördelningsavtal och carried interest i brittiska limited partnerships

Sammanfattning: Limited partnerships established in Jersey, Guernsey or England are com-plex, contractually constructed funds. The fund such partnerships form is based on a contractual basis, an agreement between the parties to the part-nership to operate for a common purpose – to acquire shares in unlisted companies in order to generate a return on the capital invested. These UK partnerships do not meet the criteria of the Swedish Income Tax Act's defi-nition of a foreign legal entity. From a Swedish tax perspective, they are instead regarded as, what in Sweden is called, simple companies. An essential feature of the UK partnerships and many other similar private equity fund structures is that the fund's key executives are entitled to a spe-cial profit share (carried interest) in the result the fund may achieve. The special profit share is special because, above a certain level of performance, it greatly exceeds the return received by other investors in relation to their capital invested. Over the past twenty years, the nature of this special profit share has been discussed in doctrine and tested in the courts. The question has no definitive answer anchored in specific legislation, nor has it been answered in concrete terms by the Supreme Administrative Court. Lower court practice shows a certain disharmony. In the pilot Nordic Capital case, the income was found not to constitute compensation for services. In the wake of this, many sub-sequent judgments resulted in the opposite conclusion - carried interest had been paid as compensation for work input. Other rulings ended in taxation under the so called 3:12-rules due to dividends on qualifying shares. The latter judgments are in the overwhelming majority and appear to be an adjustment of the approach expressed by the Administrative Court of Ap-peal in the Nordic capital case. It must therefore, in the absence of legisla-tion and higher court decisions, be considered likely that taxation of carried interest currently takes place either as income category of service or as divi-dends on qualified shares under the 3:12-rules. The origin of carried interest can be found in the fund parties' profit-sharing agreements. As a general rule, taxation should follow the parties' chosen allocation under civil law. Strong reasons are required to deviate from the agreement. Such an agreement within a British limited partnership should be accepted in the tax treatment. The Swedish Tax Agency's view in a position statement that certain investors had waived a profit to which they were ac-tually entitled is therefore inconsistent with established case law. According to the agreement, these investors were not entitled to the profit from the beginning and therefore could not have waived it. Even the Administrative Court of Appeal's recent practice regarding cases where carried interest is considered to have been paid as compensation for a performed service is difficult to reconcile with the consequence of the agreement, that no income transfer has taken place between the investors. Instead, the approved profit-sharing agreement should result in the income not being subject to service tax except on a flat-rate basis under the 3:12-rule. Finally, it should be noted that what should be the outcome is a discussion, how the issue is actually resolved under current law is a legal reality. The fact that the current law is still relatively unclear due to the disharmony in the lower court case law, combined with the lack of specific legislation in the area and guiding precedents from the Supreme Court, does not negate the fact that how the issue has typically been answered recently in the lower court determines the direction in which the legal situation leans.