Försäljning av dotterbolagsandelar : Avdragsrätt för ingående mervärdesskatt avseende transaktionskostnader

Sammanfattning: The right to deduct VAT related to transaction costs when selling subsidiary shares is a reoccurring issue and has been subject to review in courts for several decades. During the autumn of 2023, the Supreme Administrative Court of Sweden examined once again under which circumstances deductions for input VAT for transaction costs in connection with the sale of shares in subsidiaries can be granted. The case was peculiar for several reasons. While the court granted the company a right to deduct the input VAT, the counterpart (the Swedish Tax Agency) submitted a secondary claim for deduction limitation. This could not be examined with reference to the principle of instance order. The case once more raises questions of when a right to deduct input VAT can be granted and furthermore if it can be limited. The question of deductibility generally depends on whether there is a clear and immediate link between a specific cost and an outgoing transaction or a collective economic activity. The issue of when a direct and immediate link between a certain cost and either a specific transaction or the company’s collective economic activity exists has been discussed and tried at both the Court of Justice of the European Union and the Supreme Administrative Court of Sweden on repeated occasions. The aim of the essay is to determine, with the main consideration of case law in the area, in which cases there is a right to deduct and whether restrictions on the right to deduct should be introduced according to the Swedish Tax Agency's secondary claim in the most recent legal case. Through this an analysis is carried out to critically review the impact of the principle of VAT neutrality. The goal is achieved through a two-stage survey. First, an analysis is carried out to determine the cases where a clear and immediate link must exist between a specific cost associated with the sale of a subsidiary and either an outgoing transaction or an overall financial activity to determine when a right to deduct exists. Second, a comparison is made of the results of the survey with the Tax Agency's secondary claim. The result of the survey will be used to analyze the impact of the principle of neutrality in these errands.