Svenska CFC-reglers förenlighet med EU-rätten efter Cadbury Schweppes

Sammanfattning: Summary Most states in the world have rules that correspond to the Swedish CFC rules. The rules are intended to prevent national companies or individuals providing tax schemes with low-tax states and thus reduces or postpones the person's taxable income in that state. When each member state within the EU/EEA is designing their own respective rules it is assumed that each state is taking full account of the supranational EU law. For CFC taxation part, this primarily means to take into account the ECJ rulings as direct taxation for the most part remains non-harmonized. A central judgment in this context is the judgment in Cadbury Schweppes, where the ECJ held that national CFC rules may only take aim at "wholly artificial arrangements", which forced Sweden to amend the legislation. This supplement does not follow the wording of the judgment and thus it is questionable whether a certain discrepancy has arisen between the Swedish law and EU law. In order for the Swedish CFC rules to apply there must be a taxable subject in Sweden which is a partner with at least 25% of the voting rights or capital of a foreign legal entity with low taxed income. However, there are two exemptions to avoid CFC taxation that assumes that either the establishment is excluded in the white/gray list or the taxpayer is able to demonstrate that there is an "actual establishment" engaged in a "commercially motivated activity." The paper deals with the latter exemptions compatibility with EU law. The exemption has to some extent been designed differently than the ECJ ruled in Cadbury Schweppes. This may mean that the Swedish CFC rules are not expected to be proportional in a rule of reason test. The conclusion of the essay implies that the legal situation around whether the Swedish CFC rules are compatible with EU law is questionable. This is partly due to the uncertainties surrounding the interpretation of "commercially motivated activity", partly because of the question of who has the burden of proof in determining whether the exemption would apply or not. The Finnish legislature, in contrast to the Swedish, has chosen to use ECJ´s statement directly in its statutory text. This is probably a better option because it avoids the legal uncertainty to a large extent and the text of the law is more likely to be compatible with any future legal development of the ECJ.