Omklassificering av differentierad utdelning - Beaktas tillämpligheten av 57 kap. IL vid omklassificering av differentierad utdelning till löneinkomst?

Sammanfattning: Since the tax reform in Sweden, 1990–1991, earned income and capital income has been separated into a dual income tax system. The purpose of the reform was to reduce the opportunities for tax planning and to increase the justice of the system. Unfortunately, the purpose has not been achieved. To prevent income shifting from earned income to capital income the legislature legislated special legal rules in 57 chapter in IL which only apply to companies whom are covered by the chapter, for companies whom are not covered by the chapter there are no such rules to prevent income shifting. In the discourse voices has been raised that reclassification of differentiated dividend to earned income may only apply to companies not covered by 57 chapter IL. Since the chapter is not applicable in these situations there are no special legal rules to prevent income shifting for these companies. The survey shows that HFD reclassifies differentiated dividend without respect to if 57 chapter IL is applicable or not. The conclusion raises several interesting questions. For example, the conclusion implies that differentiated dividend from companies covered by the chapter can be divided into three parts – according to 57 chapter IL – and additionally a fourth part qua earned income. Furthermore, the following questions arises: On what grounds is the part of the dividend which is going to be reclassified to earned income decided? Through precedent HFD has implemented a special doctrine in tax law which enables reclassification of differentiated dividend. Ahead of our dual tax system the legislator realized that special rules had to be implemented to prevent income shifting, therefore it is interesting to reflect upon how HFD’s implemented doctrine relates to the principle of legality. Should it not be the Parliament – through legalisation – and not HFD that is to decide in which situations reclassification of differentiated dividend from capital income to earned income is applicable?