Skatteflykt och källskatt på gränsöverskridande utdelningar

Sammanfattning: Since 2015, the tax avoidance rule in the Amending Directive 2015/121 imposes minimum requirements on the EU member states to take measures to prevent abuse of the withholding tax exemption granted under the Parent-Subsidiary Directive 2011/96/EU. The applicable Swedish abuse rule in section 4(3) of the Swedish Withholding Tax Act, according to which the Amending Directive in this respect has been implemented, has been criticised for not meeting the minimum requirements of the directive. This investigation shows that the Swedish abuse rule is deficient, which is why an adjustment and adaptation of the Swedish tax abuse law to the EU law is necessary. It has been argued that the Swedish Tax Avoidance Act (STAA), which is not applicable in the context of withholding tax, in this respect would better meet the minimum requirements of the Amending Directive than the current abuse rule. The aim of this study is to determine the possibility of applying the STAA to avoidance of withholding tax. This is achieved by examining the relationship of the STAA with EU law in two steps. Firstly, the study investigates whether section 2 of the STAA meets the minimum requirements of the Amending Directive. However, the scope of the Amending Directive is ultimately determined by the general principle of EU law, according to which abuse of rights is prohibited, and the public interest in preventing tax avoidance is applied as a justification under the rule of reason doctrine for restricting treaty freedoms. Secondly, the study therefore investigates whether an application of the STAA in the context of withholding tax would be compatible with the free movement of capital. The study indicates that there is a risk that an application of the STAA in the context of withholding tax would neither fully meet the minimum requirements of the Amending Directive nor be fully compatible with the free movement of capital. For this reason, the conclusion is that it would not be possible to make the STAA, as its section 2 is currently formulated, applicable in the context of withholding tax. To ensure the impact of EU law and the compliance of Swedish law with both primary and secondary EU law there are, in my opinion, two effective alternatives. One is to adjust section 2 of the STAA to comply with the EU abuse rules and make the STAA applicable also in the context of withholding tax. Alternatively, the Supreme Administrative Court of Sweden could clarify that the general prohibition of abuse of rights under EU law should always be applied on abuse of the Parent-Subsidiary Directive.