Skalbolagsreglerna en kritisk granskning

Detta är en Kandidat-uppsats från Lunds universitet/Institutionen för handelsrätt

Sammanfattning: A shell company is a company where the company’s assets mainly consist of cash, securities and other similar liquid assets. The shell company can be: a limited liability company, an economic association or a general partnership. The company is a shell company if market value of the company’s liquid assets exceeds the half of the purchase price at the time of sale. There are several reasons to buy the shell company. One of the most common reasons to buy shares of the shell company is because the potential requirements of the buyer is to get the cash for reduced price in order to be able to invest new serious business, for example, to start a research-and development company. Another reason to buy a shell company is because the buyer of the company intends to empty the company’s cash assets without paying of income’s taxes which the buyer has to pay after he became a new owner of this shell company. In order to prevent company’s emptying and reduce the trade with the shell companies the shell company rules came into force in 2002. The rules apply when one private person sells his shares in the shell company. There are similar rules for legal person which apply when one legal person sells its joint owner rights in the shell company. Rules came into force during the year 2003. The shell company rules operate against the seller of the shell company and are classified as a law of the stopping rule character. Sometimes it is difficult to apply shell company rules in practice because the definition of shell company is so wide and the exception from the shell company rules taxation is so unclear. I can present several examples: - it is not possible to anticipate in advance if exception rule can be applied in a current situation because there are no explanations in law in what kind of situations you can apply rule for exception from the shell company taxation. - there is an exclusion from the rules for minority owner in law but it is not clear how large a minority owner’s shareholding must be for the minority shareholder is not taxed in according to the shell company’s rules, - many service companies classified often as the shell companies because they mostly consist of cash. In my opinion the seller and the buyer of the shell company should to be together responsible for company’s unpaid taxes. I think that the shell company’s rules should be clearer, for example: - the expression ”similar liquid assets” should be more clear, - the expression “special reasons” which contains in exceptional rules should be explained in Law. The purpose of this paper is to describe some possible ambiguities and difficulties which contain rules against trading with the shell companies for private persons and for legal persons.

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