Tilläggsköpeskilling - lön eller kapitalvinst?

Sammanfattning: In conjunction with business sales, earn-out agreements are commonly used. An earn-out is a mechanism whereby a portion of the purchase price is contingent, and is calculated based on the performance of the acquired business over a specified period following the closing. An earn-out can also be paid to the seller on condition that he will continue his employment within the business for an agreed time. When it comes to the taxation of earn-outs, the time for assessment is crucial since it is not always possible to determine the amount of the capital gain, or loss, at the time for the share sale. Another issue is how the earn-out should be assessed in a situation where the seller was not a tax resident at the time for the share sale, but is a tax resident at the time for disbursement of the earn-out. Further, the tax treatment of earn-out payments can vary depending on how the agreement between the parties is drafted, and the circumstances in general. It is not certain whether the earn-out payment is to be treated as a purchase price or a compensation. If treated as a purchase price, the earn-out will be assessed as an income from capital. If treated as a compensation to the seller, e.g. for continuing his employment, the earn-out will, however, be assessed as an income from employment. Since income from employment is subject to a higher tax rate than income from capital, it is, from the seller’s point of view, relevant to know in advance how the earn-out will be categorised. Neither the law, nor the legislative history, offers a clear and uniform solution to this question. The situation becomes even more complex when the seller has ownership in a close company, since owners of close companies are subject to special tax rules. Should the earn-out payment, in this case, be subject to other taxation of earned income than what follows from the close company rules? This question has been discussed both in advance notices from the Council for Advance Tax Rulings (Skatterättsnämnden) and in judgements from the Supreme Administrative Court (HFD). Therefore, in order to explain the legal position, this essay will analyse the established case law regarding the tax treatment of earn-out payments in the specific situation of the seller having ownership in a close company. In addition, the essay will analyse how recently proposed amendments of the close company rules may influence the tax treatment of earn-outs.