Regleringen av tidigare års underskott vid ägarförändringar ur ett skatteflyktsperspektiv

Sammanfattning: The 40th chapter of the Swedish Income Tax Act (Inkomstskattelagen) limits how corporation can make tax deductions for tax losses carried forward. The regulation aims at stopping undue exploitation of the combination of the possibility to balance losses carried forward with future gains and the possibility to group consolidate for tax purposes. What the legsislator wants to stop is the systematic trade of corporations with losses carried forward. The regulation, that is to be seen as an anti tax evasion law, is utterly stereotype. If a change in ownership, as defined in the legislation, has taken place; a twofold limitation of the losses carried forward is triggered. Beloppspärren limitis permanently the whole deficit except for 200 % of the expenditure to gain the ownership. Koncernbidragsspärren freezes the deficit over the five coming years. Courts have shown a tendency to use the anti tax evasion act (skatteflyktslagen) to expand the applicability of the 40th chapter of the Swedish Tax Act to cover more situations. Thus, this legislation has not been treated as lex specialis in relation to skatteflyktsklagen. The Swedish Supreme Administrative Court (Högsta Förvaltningsdomstolen) has not shown the same tendency, but has not ruled out the possibility. The stereotype art of the legislation has led to several cases where the utilization of the deficit has been hindered, where it should not have been with regard to the purpose of the law, and vice versa. This problem must be weighed against the upsides of such a law, efficient court proceeding and predictability.