Det särskilda i särskilda skäl – En utredning av rekvisitet särskilda skäl i utomståenderegeln med fokus på förarbetsuttalanden och HFD 2021 ref. 40

Sammanfattning: The 3:12 rules, found in Chapter 57 of the Swedish Income Tax Act (1999:1229), consists of special tax rules which apply to active owners in closely held corporations (fåmansföretag). The rules aim to prevent active owners from transforming salary income into lower taxed capital income. If passive owners have an ownership of at least 30 % of the shares, income shifting is no longer beneficial. Therefore, the outsider rule (utomståenderegeln) constitutes an exception to the 3:12 rules. If the incentive for income shifting remains despite the external ownership, special reasons (särskilda skäl) against applying the outsider rule can be considered to exist. This essay aims to examine what constitutes special reasons. In the legislative history of the outsider rule, examples are given of what could constitute special reasons. An analysis of the given examples shows that some of them are difficult to unify with the purpose of the provision. In 2021, the Supreme Administrative Court ruled in a case regarding special reasons, HFD 2021 ref. 40. Passive owners had a substantial ownership of the shares in the company and always received dividends that exceeded the shareholding. Due to the existence of two classes of shares and contractual terms regarding the company´s financial profit sharing, the Supreme Administrative Court applied the provision of special reasons. An analysis of the ruling shows that the income shifting was not beneficial for the active owners. In my opinion, the ruling means a liberal legal interpretation of special reasons, which in turn reduces the scope for the applicability of the outsider rule. The thesis shows that it is difficult to determine the range for special reasons. According to me, the ruling in HFD 2021 ref. 40 creates a greater unpredictability of what special reasons can include. If income shifting is not financially beneficial, special reasons should not be considered to exist and the outsider rule should be applicable. Otherwise, the adjudication process does not correspond with the purpose of the provision.