Två sidor av samma mynt? - En jämförelse av principen om rättshandlingars verkliga innebörd och lagen mot skatteflykt

Sammanfattning: Swedish tax law contains – apart from a vast and detailed tax legislation – two main approaches against the type of tax minimization commonly referred to as tax evasion. These are the General Anti-Avoidance Rule (GAAR) and the case law based principle that taxation should be based on the true implications of a transaction. According to the Swedish constitution, taxation may only be conducted if there is tax legislation corresponding to the situation at hand. Analogies are not permitted. The vague formulation of the Tax Evasion Law and the case law principle have therefore been questioned. Tax evasion procedures lead to hundreds of billions SEK being withheld from the treasury every year. Therefore, minimizing these procedures is a pressing matter for the leadership of this country. This essay contains a comparison between the Tax Evasion Law and the case law principle. I have asked the question if they are in fact so similar that it could be argued that they are one and the same. To answer this question, I have conducted a relatively extensive case study, the purpose being partly to discover the established law, but also to examine how the first and second instances apply the case law principle. I have also studied the documents of legislative history in which a provision against tax evasion was discussed. This way I have been able to not only assess how the courts handle these matters, but also what is said about tax evasion and the ways to decrease it and how these matters relate to each other. My research has shown that the case law principle is a method of adjudication and that it is applied in a variety of ways by the courts. The legislator, the courts and the Swedish Tax Authority seem to have different ideas about how and when this method should be applied. Therefore, there is no uniformity in the application. The study of the legal history documents has shown that the case law principle and the GAAR have been considered as two equal methods against tax avoidance throughout. The study of case law has shown that the taxation in many instances turns out identical regardless if the court has 6 applied the case law principle or the GAAR. My conclusion is therefore that the case law principle and the GAAR are – from the standpoint of the questions asked in this essay – so closely related that they could be considered identical. In a wider context the answer might however be another. Difficulties in separating the scope of the methods make my conclusion somewhat less precise. The current situation is however unsatisfactory, and a clarification through case law or new legislation is therefore desirable and urgent.