Kvalificerade personaloptioner - Utmärkta för de unga företagen?
Sammanfattning: In 2017, the Parliament of Sweden enacted a new set of rules in the Income Tax Act (sw: Inkomstskattelagen (1999:1229)) regarding the taxation of certain employee stock options (sw: personaloptioner), which came into force on January 1, 2018. These rules created a new category of employee stock options called qualified employee stock options. These new options are not taxable benefits when the market value of the instrument exceeds the remuneration the employee/option holder has paid to obtain it, in contrast to other securities (sw. värdepapper) and employee stock options. However, the options are not completely exempt from tax, instead they are subject to capital gains tax when the underlying asset is sold. In order to be exempt from labour taxation when the option is acquired or exercised, an option has to fulfil legal requirements in order to be a qualified employee stock option. The purpose of this essay is to examine what constitutes a qualified employee stock option, by examining the delimitation between securities and employee stock options as well as examining the legal requirements an employee stock option must fulfil in order to be qualified, focusing on the rules of valuation and the rule on maximum ownership in the issuing company. The essay also analyses whether or not the new rules are compatible with the principles of equality and neutrality, two key principles in Swedish tax law in light of the purpose of the new rules. The delimitation between securities and employee stock option differs depending on whether the option is a warrant (sw. teckningsoption) or a call option (sw. köpoption). Warrants keep their status as securities if the holder is able to realize a value equal to or exceeding the cost of the warrant, whereas call options lose their status as securities if the holder is not able to receive at least the market value of the option. The new set of rules do not change how the delimitation is made, but they have brought the term “employee stock options” into the letter of the law. The rules of valuation of qualified employee stock options in Chapter 11 a, Section 13 of the Income Tax Act facilitate the valuation of these options in comparison to the valuation of other securities and employee stock options, as there are exact rules on how to value such options, thus avoiding the problems facing valuation of assets that are not publicly-traded. The rules focus on the circumstances when the qualified employee stock option is acquired, thus enabling the employee/option holder to predict the future taxation of exercising the option. The same conclusion can be made about the rules regarding maximum ownership in the company that has issued the employee stock option. Lastly, the new rules are not in accordance with the principles of equality and neutrality as they treat both different people and different types of income differently. However, as the new rules serve their purpose, I conclude that they are a reasonable deviation from the aforementioned principles, although different valuation of different qualified employee stock options is not motivated. In addition to this, I also find that the distinction between securities and employee stock options should clarified, in order for the new rules to fully fulfil their purpose.
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