Kvalificerade personaloptioner - Skatteverkets tolkning och ett ställningstagandes konsekvenser

Sammanfattning: Every year The Swedish Tax Agency publishes indicative documents regarding interpretation and application of specific tax rules. Among these documents are general advice (sw: allmänna råd) and The Swedish Tax Agency’s position (sw: ställningstaganden) about a certain legal issue. Usually, these publications ease the taxation procedure for the taxpayer since it enables him to predict how the agency will handle the matter. However, these written documents can also generate difficulties. That is the case when the Tax Agency’s position does not correspond with the assessment of the Supreme Administrative Court. The Swedish Tax Agency’s position and general advice is not a source of law and does not have to be considered by the court when administering the law. This essay originates from the ruling HFD 2020 ref. 39. The Supreme Administrative Court dealt with chapter 11a Income Tax Act (sw: Inkomstskattelagen (1999:1229)) and the regulation regarding qualified employee stock options (sw: kvalificerade personaloptioner). The rules are designed to favour startup companies to retain and recruit valuable competence. A qualified employee stock option entails a future opportunity for the employee to obtain a share in the company. Normally an employee stock option constitutes income from employment. For this reason, the stock option is a taxable benefit. The regulations regarding qualified employee stock options statutes an exception and imply that these employee stock options in certain cases shall be exempt from taxation. This relief in taxation is intended to be a possibility for companies with limited access to capital. Instead of offering higher salary, the company can make itself attractive and keep valuable labour by offering the acquisition of shares which are not taxable as earned income. The Supreme Administrative Court had to decide whether employee stock options which gave the employee a right to obtain securities (sw: teckningsoptioner) which then led to acquisition of shares, were covered by the regulation. Such procedure had previously been denied by the Swedish Tax Agency in one of its positions. The Supreme Administrative Court, on the other hand, made an opposing assessment. This essay finds that the distinction between general motives and special motives is crucial for the opposing interpretation results. The former can, unlike the latter, be considered legislative history and is therefore to be given significance when interpreting fiscal legislation. However, The Swedish Tax Agency’s positions and its lack of legal status does not mean that the court refrains from considering them. For this reason, they can still bring considerable consequences in reality.