Högsta förvaltningsdomstolens omfördelning av handelsbolagsresultat - när, hur och varför?

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

Sammanfattning: The Swedish tax system is linked to many civil law concepts and provisions. In taxation, they have been given the same meaning in tax law as in civil law. As a result of the wide freedom of contract, this has given taxpayers great opportunities to influence taxation. Dealings can thus be designed so that they are affected by the tax system's lower tax rates. On the other hand, both the judiciary and the legislator have developed methods to deviate from the civil law meaning when the construction has gone too far. One such method is the Supreme Administrative Court's practice of deviating from unjust and unreasonable distributions of profits, conditioned by tax reasons, in a general partnership. The thesis examines in one step when, how and why such profit distributions are deviated from in taxation. The thesis shows that the origin of the partners' ability to adjust the profit distribution to suit the tax purposes lies in a lack of a two-party relationship. When neglected, the result can, instead of being distributed commercially, be distributed according to the tax consequences. When this has been the case, the distribution has often been deviated from, and the profit distributed according to reasonableness. To deviate from a distribution, it has been required that the distribution has led to a tax advantage. The thesis finds that it is unclear what requirements are placed on the tax benefit. The thesis advocates that the tax advantage should be assessed in correlation with the business reasons for the distribution. If the tax reasons can then be assumed to have constituted the reasons for the distribution, it should be possible to deviate from them. The assessment of reasonableness has been based on what would have been business-like, by considering the partners' participation and risk-taking in the business. A significant tax advantage, that taxpayers can achieve, is to take out a surplus in the general partnership via a limited company. The thesis investigates what possibilities it gives the partners to influence the taxation. The surplus can, due to the limited company, be attributed to the income category of capital, which has a lower tax rate than income from general partnerships. However, the legislator has developed a tool to counteract such income conversion. It is the so-called close company rules (“fåmansföretagsreglerna”) that affect the taxation of natural persons' income from limited companies. The rules become applicable if the natural person is active to a significant extent in the general partnership or the limited company. That should often be the case. The close company rules have been added after the court cases that developed the Supreme Administrative Court´s deviation practice. Since the rules share the same background and seek to counteract the same income conversion as the practice, the thesis sees that the reasons for judging procedures as unreasonable have decreased. Other tax benefits can also be achieved, but these are not the main focus of the thesis. The Supreme Administrative Court's judgments are usually brief, which is why it has been difficult to answer why a different distribution has been justified. The thesis has presented three possible approaches. The first is to counteract tax evasion and achieve the intended tax effect. The second is based on a functionalist view. Since a two-party relationship means that the distribution of results would never be questioned in civil law, it will never become a relevant issue in civil law. The significance first arises in tax law, which is why the distribution needs to be tested against the functions of the tax law. The third deviates from distributions that jeopardize the foundations of the tax system, for example, that income is divided into different types. It is similar to the tax evasion law, which requires that the procedure would be contrary to the purpose of the legislation to be applicable. The short and scanty judgments mean that the practice appears to be exercised relatively free, which is closest to the first approach. The practice can therefore be seen as a court-created method against tax evasion. This justifies assessing the practice in the light of the rule of law and the desire for good legislation. This is the last part of the essay. It becomes particularly interesting because the legislator has intervened with a method in the form of the close company rules. In assessing the practice, it can thus be set against the close company rules. The thesis finds that the biggest differences between the methods lie in the interventionist aims of the tax system, the rule of law and efficiency. Concerning the first, the legislator has thereby wanted to stimulate entrepreneurship, which is reflected in the design of the close company rules. It is thus through their care that these aims are met. The practice itself does not take them into account. This leads to different conditions for success between general partnerships and limited companies. As for legal certainty, the essay divides it into predictability and legality. Predictability benefits from a simple and transparent system. Both methods can be criticized for their complexity. The close company rules contain several vague requirements to determine their applicableness, which required diligent work from the courts. The calculation rules for how the income is to be distributed between the types of income are, however, standardized, which almost automates the assessment in the calculation stage. The practice lacks standardization and is instead seeking a fair business distribution. This has been shown to lead to several difficult assessments who are among other things connected to the risks of doing business. Unlike the practice, the close company rules are laid down in law, which simplifies the task to find and understand them. As a major change in the rules needs to take place through legislation, individuals are also warned before a major change. All in all, the thesis lands in that the deviation practice does not offer as good legal certainty as the close company rules. In the long run, society is burdened with extra work. The core of the principle of legality is that a tax must follow from the law. In this regard, the thesis shows that the methods have very different conditions to success. The close company rules are laid down in law and thus follow from the law, while the practice is not and instead developed by the courts. As tax law, as well as this issue, is complicated, it may be appropriate to give courts greater flexibility. The flexibility can be used to make more nuanced and correct assessments in the individual case and to combat tax avoidance. It does not have to conflict with the principle of legality. Especially not in this case when there are no tax law provisions on profit distributions for the courts to base their ruling on. Since a certain interpretation is unavoidable, and appropriate for reasons of efficiency, the principle should be affirmed as closely as possible. The thesis concludes that the principle of legality in these cases should take on a role as a valuable guideline and control station. The limit can then be drawn when the interpretation does not contribute to the principles of good legislation. Or in cases where the principles are incompatible, do not represent the overall assessment of them. The practice should therefore strive to have as good support as possible. Since the practice method does not have a direct connection to any legal article, the thesis advocates the practice method seeking legal support through a systematic interpretation of the legal system. For the best legality the approach that seeks unreasonableness in the foundations of the tax system would be preferable. The practice is then constructed closer to the tax system. However, this approach is the least flexible for the courts, which impairs their opportunities for nuanced and correct assessments. To combat tax evasion, this is undesirable. It is, therefore, possible to both praise and criticize the deviation practice. In the case when the tax advantage is achieved through income conversion between the types of income, predominant reasons speak against an application of the deviation practice. The core company rules handle that task better.

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