Finns den svenska utflyttningsbeskattningen av näringsverksamhet mellan golv och tak? - En uppsats om svensk utflyttningsbeskattnings förenlighet med ATAD och EU-rättens etableringsfrihet

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The purpose of this thesis is to study and analyse if the Swedish exit taxation is compatible with both the Anti-Tax Avoidance Directive (ATAD) and the freedom of establishment within the European Union (EU). Within the EU, one of the fundamental freedoms is establishment. EU law has developed mainly through EU-court case law. In this case, the territorial principle in the balance between a country's tax sovereignty and the free movement has meant that each country should tax the part of an increase in value that arose during the taxpayer's tax liability in the country. However, a direct payment has been considered disproportionate in relation to the freedom of establishment. Therefore, there are also rules on deferral of payment of the exit tax. In 2016, a directive was also issued against tax evasion methods, i.e. the ATAD. The Member States shall have adjusted their legislation by 1 January 2020 to comply with the Directive. In the Swedish law, exit taxation is regulated as a fictive taxation (uttagsbeskattning) and the reversal of deductions for untaxed reserves (periodiserings- och ersättningsfond). According to the Directive, exit taxation is applicable in four situations. These are the transfer of tax residence, business and assets, both from head office to permanent establishment, and from permanent establishment to head office or another permanent establishment. The Directive covers transfers between Member States or to third countries with which there is a mutual assistance agreement for the recovery of tax claims. Due to the Directive, the Ministry of Finance has published a memorandum on 5 February 2019. In my review of the Swedish rules and the Ministry of Finance's investigation, my opinion is that the fictive taxation meets the requirements for exit taxation according to the Directive. There are then the rules on the reversal of deductions for untaxed reserves, where there must be an adjustment regarding the possibility of deferral of the payment. For deferral of payment in connection with the fictive taxation, the scope of application must also be extended to meet the requirements of the Directive. The Directive contains minimum requirements for exit taxation, while EU law with its freedom of establishment is instead designed as a right without restrictions. However, in both regulations there are limitations that make these more or less coincide with each other. It means that the floor of the Directive and the roof of the freedom of establishment are similar and the Swedish regulation is then in level with both the floor and the ceiling.

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