Låter staten kapitalet sitta i valfri båt? - En analys av de svenska ränteavdragsbegränsningsreglernas förenlighet med EU-rättens fria rörlighet för kapital
Sammanfattning: The rules on whether a company may deduct interest expenses or not was first introduced in Sweden in 2009 to make sure that the country’s tax base wasn’t emptied to countries with preferable tax laws. These rules have since then been developed to fill in any gaps that may have been discovered. In 2021 the European Court of Justice determined that the rules regarding the deduction of interest expenses from 2013 was deemed unlawful in relation to the freedom of establishment within the European Union. The ruling started a discussion on what effect this might have on the rules and the Swedish tax base. In 2020 the Supreme Administrative Court of Sweden established what the term associated companies meant in relation to the rules regarding deduction of interest expenses. In the case the court found that companies could be seen as associated even though no shareholding was present between the two. The ruling could mean that the rules on when deduction of interest expense isn’t allowed is applied to more situations than those where a shareholding enable the holder to exert a definite influence. If that is a case the European Court of Justice could find that the rules could be tested against the free movement of capital. In this thesis the background of the Swedish rules regarding deduction of in-terest expenses is presented as well as the case law from the European Court of Justice regarding the freedoms. Then the case from the Supreme Adminis-trative Court of Sweden from 2020 will be presented and what effect it could have on the rules. Lastly a test whether the Swedish rules conflict with the free movement of capital and if that is the case could the rules be justified with reference to the public interest.
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