EU-förenliga riktade ränteavdragsbegränsningar – en möjlig realitet eller fantasi

Sammanfattning: The right to deduct interest expenses is limited by the general and targeted interest deduction limitation rules, including the “exemption rule” in Chapter 24, Paragraph 18, subparagraph 2 of the Law on income tax. This rule excludes the right to deduct interest paid on intra-group loans if such loans have been made exclusively or almost exclusively for the purpose of obtaining a substantial tax benefit for the group. The purpose of the interest deduction limitations is to protect the tax base against aggressive tax planning through interest deduction schemes. The question of the compatibility of the exemption rule with EU law has been discussed for a long time. In HFD 2021 ref. 68, with reference to case C-484/19 (Lexel) concerning the 2013 exemption rule, the exemption rule in the 2019 limitations was declared incompatible with the freedom of establishment in relation to cross-border intra-group loans where group contribution rights would have applied if both companies were Swedish. The exemption rule was found to constitute a restriction, which could not be justified by the need to prevent tax evasion or to safeguard the balanced allocation of taxing rights. In addition, the exemption rule has been criticised in relation to the principle of proportionality. However, there is an expressed interest in maintaining the exemption rule and fulfilling its original purpose. Accordingly, the government has commissioned a special investigator to make proposals on how the exemption rule can be adapted both with regards to EU law and to the fact that the provision effectively counteracts tax avoidance through interest deductions. The purpose of this thesis was to examine the legal possibilities for designing such an adapted exemption rule, for which seven questions were answered. Looking at the case law of the Court of Justice of the European Union, including Lexel, the conclusion is that an adapted exemption rule may be justified if it is designed either with regards to the justification based on the prevention of tax evasion or by taking it into account together with the justification based on safeguarding the balanced allocation of taxing rights. Furthermore, the forthcoming judgment in case C-585/22 (Staatssecretaris van Financiën) may play a role in this matter. However, these possibilities for achieving compatibility with EU law are narrow and the principle of proportionality poses additional challenges. An opinion from the CJEU is needed to provide clarity. The legislator's room for manoeuvre with regards to the effectiveness of the exemption rule is also narrow and depends to some extent on the outcome in Staatssecretaris van Financiën. The assessment of the effectiveness of the rule can be guided by the risk areas identified by the OECD for base erosion and profit shifting (BEPS) as a result of arrangements with interest deductions, and a possible justification by taking both of the grounds for justification into account seems to open up the greatest opportunities to design an adapted exemption rule that meets this need.