Att skapa prejudikat eller rätt? - En analys av den praxisstyrda tolkningen av fåmansföretagsreglerna för när överföring och förvaltning av kapital anses vara samma eller likartad verksamhet

Sammanfattning: In Sweden, there is a large number of close companies, and the taxation of shareholders' shares in these companies varies depending on whether the shares are considered qualified or non-qualified. The qualification criteria and exceptions for these are outlined in the so-called 3:12-rules. These rules exist to prevent income associated with a shareholder's work effort from being classified as income from capital instead of income from employment. A shareholder's shares in a close company is considered qualified if the shareholder is actively involved to a significant extent in another close company that operates a similar or related business. Over time, the Supreme Administrative Court (HFD) has established several precedents regarding the rule on a similar or related business. Due to the vague wording of the law and the lack of a clear definition in the legislative history regarding what constitutes a similar or related business, the interpretation of this concept has relied on precedents. The precedent-driven interpretation has given the concept a broader meaning than what is stated in the legal text and legislative history. By exceeding the interpretive space defined by the legal text, HFD's application of the rule becomes unpredictable. This is also reflected in statements in legislative history and legal doctrine that have considered the legal situation to be clarified and specified, only for HFD to expand the meaning of the concept further in new precedents. In the latest precedent, HFD 2023 ref. 11, HFD has also deviated from its previous interpretation of the concept, thereby alter-ing the legal situation once again. Based on the principle of legality in tax law, it can be argued that the interpretation and application of a legal rule must meet the regulatory requirements and the principle of certainty, nullum tributum sine lege.