Skattekonsekvenser av aktieägartillskott från fysiska personer genom omvandlingar av fordringar och villkorade aktieägartillskott

Sammanfattning: The purpose of this thesis is to clarify the legal position, concerning transformations of claims to conditioned or unconditioned capital contributions as well as transformations of conditioned capital contributions to unconditioned. I will discuss the consequences, both for the company and for the giver. Further, I will discuss the reasonability in the prevailing legal position, and I will try to point out remaining questions and try to bring an answer to them. My conclusions are as follows: As for the company, the contributions are tax-free, but can affect the possibilities to use the deficits from earlier years. This is the case due to specific rules if the contribution is made shortly before a change of ownership. Furthermore the position of the Swedish tax authorities is that an accord can be the consequence of the transformation. The accord would have the size of the difference between the nominal value and the market value of the transformed asset at the time of transformation. One could criticise the position of the authorities, since the court practice has shown that the whole transformed asset is considered to be divested. Since an accord is not considered to lead to a divestment, it appears unlikely that an accord would arise in the case of a transformation. Hence, the most reasonable position is that an accord does not occur. As for the giver, he is considered to have made a capital contribution, equal to the market value of the transformed asset at the time of transformation. Furthermore, the whole transformed asset is considered to be divested and tax deduction for capital loss is given. Albeit the legal position is not completely clear, there is much that indicates that the above mentioned applies for all kinds of transformations. The legal position this far does at least not seem unreasonable. Concerning repayments of conditioned capital contributions it could be concluded that it is within tax law considered as an amortisation, even though the repayment exceeds the market value of the transformed asset. I find it hard to motivate why such a payment should be deemed to be repayment, since practice has stipulated that a contribution cannot have a value exceeding the market value of the transformed asset at the time of transformation. Should it not be that value that sets the limit for what is to be considered as repayment instead of dividend, at least if the payment is not made to the same person as the one who actually made a real contribution (i.e. a contribution with a market value that equals the nominal value) from the beginning? It should be noted that the anti-tax evasion clause is applicable during certain circumstances when conditioned capital contributions are used to evade the special rules in chapter 57 of the Swedish Income Tax Act, Inkomstskattelagen (1999:1229). Which circumstances these are, is still somewhat obscure. Finally, it is mainly concerning the repayments of conditioned capital contributions the legal position appears to be illogical and hence unreasonable. If this prevailing position is going to persist, the Swedish Supreme Administrative Court, Regeringsrätten, has to be more elaborate and clarifying in its motivations.