Det ombildade aktiebolaget - En närmare undersökning av fiktiv avräkning och kupongskatt vid gränsöverskridande ombildning

Sammanfattning: Through the EU Directive 2019/2121 and the practice of the Court of Justice of the European Union (CJEU), a limited liability company can make a cross-border conversion into a corresponding legal entity in another Member State. This essay aims to investigate whether withholding tax must be paid in Sweden after a Swedish-registered limited company carries out a cross-border conversion without conducting economic activity in the des-tined Member State. It also aims to investigate whether companies that do a cross border conversion, that is subject to withdrawal tax, have a right, through the freedom of establishment, to deduct the tax that would have been charged in the Member State where the company has a permanent establishment. Swedish tax agreements shall be applied and interpreted in accordance with EU law. Since this is not considered in the Principal Purpose Test (PPT) the EU legal abuse principle has priority in the case of a conflict. The above-described cross border conversion considering withholding tax is exempted from the avoidance rule in the Swedish Withholding Tax Act and the Swedish Tax Avoidance Act. Therefore, only the abuse principle is applicable. In the EU case Polbud, the CJEU extended the freedom of establishment to cover cross-border conversion to other Member State without economic activity being conducted in the destined Member State. In accordance with CJEU practice it does not automatically constitute abuse to want to be covered by another country's legislation. The procedure that the paper exam-ines does not entail redistribution of profit between different actors since the company and the permanent establishments are one legal entity. Based on all of this, the abuse principle is generally not applicable to the structure. When a company is subject to withdrawal tax the merger directive gives companies, in certain situations, a right to deduct the tax that would have been charged in the Member State in which the company has a permanent establishment. Neither the merger directive nor Swedish law extends this right to cross-border conversions. The deduction is only actualized in cross-border procedures. The fact that it is not allowed for cross-border conversions gives rise to double taxation, which reduces the incentives to carry out a cross-border conversion and to establish permanent establishments. The restriction constitutes a categorical prohibition and does not ensure the coherence of the tax system. Therefore, it is concluded that it is contrary to the freedom of establishment in articles 49–55 of the TFEU to not allow the deduction.