Överlåtelser av aktier till anställda - En kritisk analys av anställdas direkta och indirekta aktieförvärv i ljuset av neutralitetsprincipen

Sammanfattning: Transferring shares to employees is a common, and sometimes necessary, measure to expand or adjust the ownership in a company and in the long run, for the company to be able to continue to operate in a successful way. Possible advantages of transferring shares to employees are that they often possess good understanding about the company in which they operate. The shares can be transferred based on market terms or against a remuneration that is less than market value. There can be several reasons for transferring the shares to a compensation less than the market value. Firstly, the transferor's intention might be purely beneficial. However, there are also practical reasons for such a transfer, not least in cases where the employee is not able to finance an acquisition at market price. However, in the event of a transfer of shares to employees, certain issues in terms of taxation may arise. Under some conditions a beneficial transfer to an employee may be regarded as compensation for performed work. In these cases, the tax consequences cannot be avoided. Furthermore, the tax consequences are governed by different provisions. In the case of direct acquisitions, the assessment is made against 8 chap. 2 § and 11 chap. 1 § of the Income Tax Act (1999: 1229), IL. In the case of indirect acquisitions, that is such an acquisition that takes place between two companies, the assessment is conducted against chap. 23 IL, primarily against 23 chap. 3 and 11 §§ IL. The fact that a transfer of shares, depending on whether acquired directly or indirectly by the employee, is assessed with regards to different provisions as well as the fact that the tax consequences seem to vary depending on who receives the gift raises questions about neutrality in taxation. Consequently, based on the application of a legal dogmatic method, this essay intends to examine the current legal situation regarding transfers of shares to employees in the light of the principle of neutrality. The issue has been tried in legal practice several times. In some cases, the court has found that the transfer has no basis in the employment, in other cases the court has found that the transfer is based on the employment. My conclusion is that, because of the special character that characterizes each individual case, it is difficult to draw any definite conclusions about which considerations that govern the taxation, however, some recurrent guidelines can be distinguished in legal practice. In cases where the receiver is related to the giver, there seems to be a presumption that the transfer does not have its basis in the employment. The tax consequences in these cases can therefore generally be avoided. Difficulties in distinguishing clear guidelines for the assessment derives mainly from the fact that the decisions have the character of in casu decisions. As far as the neutrality issue is concerned, the conclusion in this regard is that it is possible, both in the case of direct and indirect acquisitions, to consider work efforts when calculating the total acquired remuneration. In this regard, the neutrality between the two types of acquisition is met. However, due to the particularity of the decisions, it is difficult to discern any major or definitive similarities or differences in this assessment. Though, a distinct similarity is that the fact that the employee is related to the giver is of great importance in both situations. This development is in line with the line with the concept of gifts as expressed in legal practice as a relationship between the giver and the recipient suggests that a beneficial intention exists against the latter. However, it is possible to question whether this special treatment is justified in terms of neutrality. There are several reasons to consider a benefit intention to exist in most situations, thus, also in cases where the recipient is not related to the giver. Consequently, tax consequences should be avoided to a greater extent also in such situations. There are numerous reasons for this conclusion. Not least reasons based on neutrality and, hence, also socio-economic reasons in form of more successful changes of ownership. Consequently, this thesis shows that neutrality purposes are forced to stand back in favour of a formalized assessment of the prerequisites that constitutes a gift.