The gift of giving - En studie av koncernbidrag och lagen mot skatteflykt

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Swedish corporate taxation is based on the fact that each individual company is an independently taxable subject. On the other hand, in some circumstances it is possible to take into account several companies' income of economic activities, when these are part of a corporate group. One option available is the group contribution. If the rules concerning group contributions are applicable and a distribution has been made, the rewarding company must make a deduction of the value of the distribution at the same time as the recipient must submit corresponding amount for taxation. As a result, the rewarding company's taxable income is lowered while the recipient's taxable income is raised. Even though the group contribution is a concept within tax law, it has some cooperation with private law, especially the law concerning limited companies. It was on the basis of this legal area that the group contribution rules were formed. A number of conditions have been set up as requirements for companies wanting to use the benefits of the group contribution. In addition, there are further limitations on the set-off possibilities when a company operating at a loss has been involved in a change of ownership. However, this is not all. There is also a general tax evasion clause in the Swedish anti-tax avoidance act, lagen mot skatteflykt, with which tax evasion procedures can be addressed effectively. However, how this legislation should be interpreted is not easy to ascertain and the existing case law seldom contains clear references to the reasoning behind why it is deemed to be a tax evasion procedure. However, the existing case law has made some clarifications and some guidance can be obtained. For example, even if a group contribution is technically allowed to create a deficit in the rewarding company, problems arise if an external sale is subsequently carried out. In a case like this, lagen mot skatteflykt is applicable. However, if the sale in the same situation is done within the corporate group, application of the tax evasion clause can be avoided.

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