Kupongbeskattning av utländska offentliga pensionsfonder - En analys av huruvida kupongbeskattningen av utländska offentliga pensionsfonder strider mot den fria rörligheten för kapital

Sammanfattning: The taxation of income is primarily a sovereign matter for the Swedish parliament. The Swedish membership in the European Union has however circumscribed the legislative capacity and the legislator is nowadays bound by the demands of EU law. This has resulted in potential conflicts between internal tax law and EU law. An example of an aforementioned conflict is the Swedish withholding taxation of dividends to foreign state pension funds. This tax regime has been criticized to be irreconcilable with the free movement of capital by the European Commission. The paper thus examines if the Swedish withholding tax on dividends is incompatible with EU law. The inquiry includes a presentation of the Withholding tax act where it’s demonstrated how the foreign state pension funds are being fiscally differentiated in relation to the domestic public pension funds. The domestic funds are exempted from taxation whilst the foreign counterparts are liable to pay 30 percent on their dividends received from Swedish corporations. Furthermore, the framework of the EU law has been examined to determine what constitutes a permissible restriction of the free movement of capital. Consequently, the essay asserts what constitutes an infringement of the Treaty of the functioning of the European Union and presents the legal justification grounds according to the treaty. Finally, the domestic tax treatment of foreign public funds is analyzed based on the requirements the free movement of capital imposes on the Swedish legislator. It is concluded that the current tax regime for foreign public funds does not conflict with EU law due to the incomparable situations in which the funds find themselves.