Koncernavdrag - En analys ur EU-rättslig perspektiv

Sammanfattning: Summary The membership of EU has had significant legal consequences for the member states and has resulted in a new legal system. The EU Law is superior to and has priority over national legislation according to the EU case-law. In some areas, for example direct taxation, the member states have retained their national sovereignty. Direct taxation is not regulated except for a few exceptions in the treaty and can be restricted only through directives that demand unanimity. However, member states must consider EU Law also in this matter according to the ECJ case-law. ECJ has in some cases such as Marks & Spencer, Oy AA, X Holding and A Oy decided on questions concerning offset of losses between companies in a cross-border group of companies. ECJ stated in the Marks and Spencer case that a parent company can deduct from its taxable profits losses incurred by a subsidiary in another member state, when it is not possible for the subsidiary’s losses to be taken into account in its state of residence for future periods. The member states have the sole responsibility of taxation as long as national taxation rules do not preclude free movement and freedom of establishment concerning offset of losses in a cross-border situation. They are not considered restricting the freedom of establishment if comparable cross-border situations and domestic situations are regarded equally. A special regulation that results in cross-border situations being regarded less advantageous is inconsistent with the EU Law and cannot be justified. The ECJ’s case-law has affected the Swedish legislation in the area of group contribution. In 2009 the Supreme Administrative Court decided in ten cases concerning group contribution in the light of the Marks & Spencer and the Oy AA cases. The Supreme Administrative Court judged the Swedish rules inconsistent with the EU rules. That is why chapter 35 a was inaugurated into Inkomstskattelagen, the Swedish Income Tax Law. This paper will discuss the background for inaugurating the new chapter and the question whether the new legislation is consistent with EU Law and how it is construed by the Supreme Administrative Court. A prediction of the Swedish legislation’s consistency with EU Law and its development will be made, based on the recent judgements by ECJ.