Avvägningen mellan realisationsprincipen och kontinuitetsprincipen - Om beskattningstidpunkt vid gemensamma andelsbyten av kvalificerade andelar

Sammanfattning: An exchange of shares is a transaction in which the seller sells shares in one company to another company, in exchange for shares in the purchasing company. In general, exchanges are taxed at the time of realization. However, Chapter 48 a of the Swedish Income Tax Act entails the time of taxation to be postponed for exchanges of shares through continuity. The thesis aims to examine the impact of the continuity principle (principle of basis carry-over) in the case of joint exchanges of qualified shares. In addition to the purpose, the thesis aspires to examine generally applicable conclusions regarding the balancing of the realization principle and the continuity principle. The examination reveals that in theory there are three alternatives of taxation for joint exchanges of qualified shares. Such transactions can be taxed according to the realization principle or according to the continuity principle. It is also possible to give the continuity principle full or partial impact. If the continuity principle is given full impact the transaction is taxed as a single exchange. If the continuity principle is given partial impact the transaction is taxed as several separate exchanges. Furthermore, the examination shows that applicable law entails that the continuity principle has no impact or an indirect impact on taxation of joint exchanges of qualified shares. Finally, the examination finds that the continuity principle should be given partial impact when taxing joint exchanges of qualified shares. The requirements set out in the Merger Directive, Swedish legislative history, precedents and doctrine suggest that it is appropriate to apply the continuity principle. The principle of neutrality suggests giving the continuity principle partial impact. In addition, it is possible to make some observations regarding the balancing of the realization principle and the continuity principle. The balancing does not constitute a choice between two alternatives but a placement on a scale. There is reason to apply the continuity principle when the payment of a transaction does not give the taxpayer a concrete ability to pay or when the object of the transaction can typically be assumed to contribute to societal efficiency.