2013- och 2019 års riktade ränteavdragsregler och deras förenlighet med EU-rätten

Sammanfattning: In chapter 24 of the Swedish statute of income taxation there are rules that, translated into english, would be called ”the aimed interest deduction rules”. These rules infringe on the possibilities of companies to deduct interests of loans that said companies have taken from other companies - within the same corporate group of companies. If Swedish companies secure loans from foreign low taxed companies, within the same corporate group, and if the Swedish companies can deduct the interest connected to these loans, the Swedish state is in risk of losing it’s ability to tax the earnings of said Swedish companies. The purpose of the aimed interest deduction rules is to prevent this from happening. The aimed interest deduction rules were first put into law in the year 2009, but they were then modified in the year 2013 and then again in the year 2019. The aimed interest deduction rules have received a lot of criticism over the years. The criticism is based on the notion that the rules are detrimental for groups of companies that are located in more than one EU-state (with Sweden being one of them). If groups of companies that transcend borders are struck worse than groups that are solely located in Sweden; then the rules are in risk of violating EU-law. This essay aims at sorting out wether or not the interest deduction rules from the years 2013 and 2019 are in violation of EU-law. A legal analysis, pertaining to EU-law, contains several steps. One step is to determine wether or not the rules lead to negative special treatment towards foreign companies (in other EU-states) or towards groups of companies located in more than one EU-state. In case the rules lead to a negative special treatment; the existence of potential ”justification grounds” are examined. The existence of said grounds would allow states to conduct the negative special treatment without violating EU-law. If justification grounds are determined to exist the final step of the analysis is to determine wether or not the rules are proportionate, in other words wether or not the rules are effective in fulfilling their purpose and do not constitute infringements that go longer than necessary. From conducting above mentioned legal analysis I have reached the conclusion that the aimed interest deduction rules of 2013 lead to a negative special treatment towards foreign companies and cross-border groups of companies, unlike the rules from 2019. I have reached this conclusion based on the presence of a rule called ”the 10%-rule” among the rules of 2013. This rule affects cross border groups of companies differently from how it affects strictly national groups of companies. This rule is absent from the rules of 2019. Another reason for why I reach this conclusion is that the rules from 2013 are not applied to companies that can give each other contributions, something that is much more common between Swedish companies than it is between Swedish and foreign companies. Since the rules of 2019 have a much narrower field of application, I deem the difference in how often Swedish and cross border groups of companies are struck by them, to be much smaller. I further deem the rules of both years to be justifiable via aforementioned ”justification grounds”. Regarding the proportionality of the rules I deem the rules of 2013 to be disproportionate and the rules of 2019 to have been disproportionate if they had led to a negative special treatment. I base this conclusion on the fact that the rules do not exclusively target what is called ”purely fictitious arrangements”. Two other reasons is that the rules do not follow the arm length principle and that their criteria are too vague to be able to provide reliability in how they are applied. Regarding the rules of 2019; my view is that they probably entail a non-discriminatory restriction of EU-law.