Att kunna definieras som ett Investmentföretag - En studie om rekvisiten i 39 kap. 15 § inkomstskattelagen

Sammanfattning: This essay deals with the three necessary conditions, stipulated in the Swedish Income Tax Act (“Inkomstskattelagen”), needed to be met in order for a company to be able to constitute an investment company. However, determining whether an entity satisfies one or more of the criteria for investment company status has not always proved to be unproblematic in practice. The purpose of the essay is thus partly to account for and try to clarify how each condition is to be understood and interpreted, and partly to try to ascertain, if identifiable, common denominators when assessing whether the conditions are to be regarded and assessed as fulfilled or not fulfilled. In assessing whether the first condition is to be considered to be met, two factors in particular have emerged as being of significant importance: the purpose of an investment company's activities must be asset management, and that it is the asset management activity that is de facto carried out. In assessing whether the second condition is to be considered to be met, the study revealed, inter alia, that several subsidiary holdings can offer risk diversification and that there are restrictions on the proportion of what the risk-distributing component, but also shares in a stock portfolio, may constitute of the total value of the assets. In assessing whether the third condition is to be considered satisfied, the study revealed, inter alia, that approximately 80 shareholders are not sufficient but that a presumptive, but probable, group of shareholders of 740 persons, the majority of which is assumed to be physical persons, is sufficient to meet the condition. Common denominators identified for all three conditions are: (1) documentation and concretization, (2) predictability, (3) inertia, (4) consideration of facts over time, (5) purpose and context, and (6) consideration of probable future facts.