Något om förhållandet mellan intern rätt och skatteavtal – särskilt om s.k. normkollision
Sammanfattning: The objective of this thesis is to provide an overview of the legal position regarding the relationship between tax treaties and domestic law. The main focus is on the situation where the application of the domestic law and a tax treaty leads to irreconcilable results (“conflict of norms” or “norm conflict”). In this respect, the thesis deals with questions regarding the tax treaty’s position within the hierarchy of norms in Sweden and which view that is suitable to adopt when it comes to the conflict of norms. The essay also contains a chapter dealing with how other states apprehend the relationship between tax treaties and domestic law and how a potential norm conflict should be resolved. The questions are in no way new and have been heavily debated in Sweden as well as in other parts of the world during the last few years. The predominant view in Sweden when it came to the interpretation and application of the tax treaties was for many years that the courts had a duty to take the obligations flowing from the international law into consideration. This position most certainly lost a great part of its lustre when the Swedish Supreme Administrative Court in 2008 (cases RÅ 2008 ref. 24 and RÅ 2008 not. 61) gave precedence to CFC legislation over a tax treaty without even consulting the tax treaty. The judgements were heavily criticized and some even meant that the Court had made an error in its rulings. This is most likely why many felt relieved when the Court two years later in the case RÅ 2010 ref. 112 declared that as a main rule the tax treaty should take precedence over domestic law. Nevertheless no one can with certainty say that this means that the sound of the roaring guns have ceased once and for all, since the court did not decide the 2010 judgement in full court and also because the Court introduced a rule of exception from the rule that Swedish tax treaties prevail over domestic law. Moreover, the thesis provides a detailed explanation of the emerged legal position, including case reports of RÅ 2008 ref. 24 and RÅ 2010 ref. 112, a review of the opinions prominently figuring in the legal literature, and an analysis of the legal situation. When it comes to the tax treaty’s position within the hierarchy of norms in Sweden it is most likely that either the origin or the character of the tax treaty lead to the result that the tax treaty ranks higher within the hierarchy of norms than the domestic law in form of the Swedish Income Tax Act. This position is based on the fact that at the end of the day it is the Swedish parliament that decides in both cases and that treaties have to be incorporated in the domestic legislation under Swedish constitutional law. Treaties as such have no effect. Finally, the dualistic approach adopted by Sweden means that the origin of the tax treaty is irrelevant when it comes to the treaty’s position in the statutory hierarchy. Furthermore, when it comes the question of a norm conflict the inference is drawn from RÅ 2010 ref. 112 that as a main rule the tax treaty shall take 2 precedence over domestic law, but this rule will be set aside when the Swedish legislator has clearly stated that an income is to be taxed in Sweden or that a new rule of domestic law takes precedence over the tax treaty. This rule of exception and its scope is examined and it is established that the requirement “clearly stated” is without doubt easily fulfilled. It is also pointed out that the two cases (RÅ 2008 ref. 24 and RÅ 2010 ref. 112) are not by far effortlessly reconciled. Regarding the norm conflict itself I am of the opinion that as a main rule no genuine norm conflict can be said to arise when it comes to tax treaties and domestic law. The norm conflict can instead be said to be apparent. My position on the matter is based on the purpose and construction of the tax treaty. This means that it lies in the nature of the tax treaties to have a limiting effect on domestic tax regimes. If the legislator on the other hand has clearly stated that domestic law will take precedence over a tax treaty it seems that the Swedish Supreme Administrative Court considers that in this case the norm conflict would be genuine and not apparent. The genuine norm conflict would, according to the Court’s reasoning, be solved with the use of the principles of derogation. The question if it is appropriate to solve such a “conflict” with the principles of derogation can be called into question, especially since it is not entirely clear whether the norm conflict in this case can be said to be genuine or apparent. Since questions regarding the relationship between tax treaties and domestic law are in no way exceptional just for Sweden, the essay contains an international comparative study. The international development is examined by brief studies of a number of selected jurisdictions. The interference reached is that the international development has moved towards that more and more states, although the grounds and modes of procedure differ, are singing the tax treaty praises.
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