Koncernbidrag med bolag utanför EES : Är det förenligt med ickediskrimineringsklausulen och kan klausulen användas när flera skatteavtal är tillämpliga?

Sammanfattning: The Swedish group contribution rules entails that group contribution is only allowed when the parent company owns more than 90 percent in a company. To be able to deduct group contribution some conditions has to be fulfilled. One condition is that the receiver of the contribution shall not be a resident of a foreign state. The question that arises is whether group contribution with deductibility is consistent with the non-discrimination clause. In some group contribution situations several tax conventions can be applicable. Therefore, it is discussed if the non-discrimination clause can be applied in such situations. The rules regarding group contribution when companies outside the European economic area (EEA) are part of the group is unclear in case law. Case law seems to indicate that the non-discrimination clause is applicable to the group even when a company outside the EEA is a part of the group. However, for the non-discrimination clause to be applicable it has to be a discriminatory situation and the companies have to be in a “same circumstances”. The requirement of “same circumstances” seems difficult to fulfill, the requirement entails that the companies shall be residents of the same state. The author considers that group contribution to companies outside the EEA is compatible with the non-discrimination clause. There is a discriminatory situation for the companies and the companies are considered to be residents of the same state. However, the author considers that the requirement of residence is strict and it gives nationality and residence a non-discriminatory status. Furthermore, it is considered that the non-discrimination clause can be used when several tax conventions are applicable. Since it is stated in the comments to the OECD model tax convention and it is stated by the court that consideration should be given to the model tax convention.