Det skatterättsliga företrädaransvaret – Är det dags för en förändring?

Sammanfattning: A distinctive feature of a limited company is that shareholders do not risk more than they have invested. This makes it possible for innovative shareholders to run high-risk businesses in an organized and sustainable manner without having to risk their own private capital. The principle of limited personal liability promotes economic activity and therefore has a clear socio-economic purpose. It also illustrates the conflict of interests between shareholders and creditors. Shareholders have a limited risk but virtually an unlimited profit opportunity. Shareholders can therefor often prefer to contribute as little share capital as possible while creditors want the company to have a fairly sizeable capital. The principle of limited personal liability obliges creditors to submit all their claims directly against the company. Therefore the Swedish Companies Act (2005:551) contains several rules that aim to protect the company´s capital. Shareholders are not allowed to dispose freely of the company’s assets. But the company still risks losing capital due to bad business. Therefor the Swedish Companies Act contains rules regarding compulsory liquidation due to capital deficiency. The rules impose a pattern of actions that must be followed when there is reason to believe that the company´s capital is less then half of the share capital. If the rules are not followed the company’s representatives are at risk of personal liability for the company’s obligations. The personal liability also includes taxes. Regarding tax liabilities there is one more exception from the principle of limited personal liability. In the Swedish tax law (2011:1244) there are provisions regarding personal liability, which solely focuses on tax liabilities. All creditors can use the personal liability rules in the Swedish Companies Act. However, the provisions regarding personal liability in the Swedish tax law can only be used by the Swedish state. Representatives of limited liability companies therefore have two legal frameworks to consider if they want to avoid personal liability for taxes. The legal frameworks are very different from each other and require different measures to be taken to avoid personal liability. The effect of this is that even though representatives comply with one legal framework they still risk personal liability due to the other legal framework, even though it is the same tax liability they are trying not to become responsible for. There are a lot of critical voices against the provisions regarding personal liability set out in the Swedish tax law. Many people are of the opinion that the Swedish state gets unjustified benefits in comparison with other creditors. Many people believe that the legal framework affects the Swedish business climate in a negative manner. Furthermore, many people believe that the legal framework in the Swedish tax law is in direct conflict with the sole purpose behind the provisions set out in the Swedish Companies Act. The purpose of this essay has been to investigate if there are any relevant legal grounds or other legitimate reasons for the provisions set out in the Swedish tax law. Focus has been on a comparison between the provisions regarding personal liability in the Swedish Companies Act and the Swedish tax law. In addition, a smaller comparison has been made between Swedish and Nordic legislation. This essay has shows that some of the criticism has been well placed and that the provisions in the Swedish Companies Act as well as the Swedish tax law are in need of a review.