Självständighetsbegreppet och val av skattesubjekt

Sammanfattning: This Paper has examined in which cases an income that according to civil law belongs to a stock company should be taxed as an income that belongs directly to the owner of the company. This paper focuses specifically on the situation when the business operation of a stock company is not considered to be an independently run business according to 13 kap 1 § IL. According to the current court practice from the supreme administrative court of Sweden the tax burden from an income which derives from a company that is not considered independent shall be levied on the owner of the company and the income shall be considered and taxed as an income from service. In this paper the court practice of the supreme administrative court has been critically reviewed and compared to alternative solutions to this legal issue that has been suggested in Swedish legal doctrine. This comparison includes an investigation of what legal support there is for the different solutions in the law text of the Swedish tax code. The tax code is interpreted according to the method of legal interpretation of tax law with a special focus on the principle of legality. The principle of legality does not allow for an income to be taxed as a business income unless the requirement in 13 kap 1 § IL for the business to be independent is met or the exception in 13 kap 2 § IL is applicable. It is therefore necessary to base the evaluation of who is the tax subject on if the income in question meets the requirements in 13 kap 1 § IL. This requirement means that an employee cannot transition into becoming a contractor to the employer without substantially changing the practical relationship between the parties. This inhibits employees from becoming contractors only in order to enjoy the lower tax rates on business and capital gains income compared to income of service. The supreme administrative court base their assessment if a business is independent or not on a wide variety of factors which are summarized into an overall assessment.