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En undersökning från ett rättssäkerhetsperspektiv av reglerna om uppgiftskontroll och sekretess i förslaget till svensk APA-lagstiftning.

Andersson, Claes (2009)
Department of Law
Abstract
Skatteverket (The Swedish Tax Authority) has by order from the Swedish government investigated the possibility of instituting a national law to regulate Advance Pricing Agreements, APA:s or ''Prissättningsbesked''. The investigation has led to a law proposal that will standardize the application and giving of such Advance Pricing Agreements. The reason for this initiative is the problems with internal pricing. A business person who utilises internal pricing not consistant with market prices could use this discrepancy to freely transfer income between different tax jurisdictions. In this way choosing in what country the income should be taxed and minimizing income tax by choosing a country with low income taxation. There are both national... (More)
Skatteverket (The Swedish Tax Authority) has by order from the Swedish government investigated the possibility of instituting a national law to regulate Advance Pricing Agreements, APA:s or ''Prissättningsbesked''. The investigation has led to a law proposal that will standardize the application and giving of such Advance Pricing Agreements. The reason for this initiative is the problems with internal pricing. A business person who utilises internal pricing not consistant with market prices could use this discrepancy to freely transfer income between different tax jurisdictions. In this way choosing in what country the income should be taxed and minimizing income tax by choosing a country with low income taxation. There are both national and international laws that aim to combat this form of tax evasion. Such legislation can lead to international economic double taxation wich can impose significant costs for the business person concerned. Hence there are benefits for both the state and the tax payer in an APA. It guarantees that the prices utilized by the business person are at arms length while at the same time removes the risk for the tax payer of being targeted by legislative measures that could potentially lead to significant costs. An APA could be described as an agreement between the business person and one or more national tax authority. By establishing a row of conditions regarding the business persons internal pricing policies, for example the price setting method used, the APA can guarantee that the internal prices of the business person are at arms length. As mentioned above there is a lot of international legislation, for example from the OECD and the European Commission, that advocate the usage of APA:s as a means for eliminating the problem with incorrect internal pricing. The presented Swedish law proposal has taken the international law sources into account and is in accordance with their recommendations. According to the proposal, Skatteverket will be the authority in charge of administering the APA-system. The administering will be conducted within the normal administration of the Swedish tax system. The basis for the questions discussed in this thesis is that information concerning the applicants business, which will need to be disclosed to Skatteverket in the negotiations, must be handled in a way so that the disclosure does not place the applicant in a more burdensome position as a consequence of the application. There is a risk that this disclosure of information could lead to a more thorough inspection of the applicants business by the tax authority. The details regarding the applicants business that will be required for the creation of an APA will in no small part be such that they do not fall under any statutory information obligation. The law proposal suggests that Skatteverket, to be able to verify the information handed over by the applicant in APA procedings, is given the mandate to carry out audits in the form of ''taxeringsbesök'' and ''taxeringsrevision'' as laid down in chapter 3 Taxeringslagen. Out of these two control instruments, especially ''taxeringsrevision'' allows extensive inspection of the applicants business. ''Taxeringsbesök'' on the other hand is always carried out in collaboration with the audited party. Several of the parties to whom the law proposal has been referred for consideration has been critical of the suggestion that the law will allow ''taxeringsrevision'' for the control of gathered information. The suitability in the utilization of ''taxeringsbesök'' and ''taxeringsrevision'' are two of the issues examined in this thesis. The conclusion is that the needed level of control can be maintained even if the administrating authority is not given the right to conduct ''taxeringsrevision''. This way the balance between the applicant and the administering authority will also be maintained. Apart from the suitability questions regarding the suggested control instruments, the law proposal is also analysed with regards to its secrecy rules. Information that is handed over in the course of an APA-application shall, according to the proposal, be regarded as confidential just as all other information concerning the economic conditions of private individuals. The surrendered information is not confidential to the extent that it cannot be communicated within Skatteverket. Because of this there is a risk that the information could also be used within Skatteverket to establish and charge income tax. This fact is also critizised by the parties to which the proposal has been referred. Theese parties maintain that information handed over in APA proceedings should be classified to the extent that it can not be used for other purposes than establishing and maintaining the APA. A solution to this problem could be that the body within the tax authority in charge of handling the pricing agreements is organized in a way that would make it an independent branch (''självständig verksamhetsgren''). Doing this would bring intraorganizational confidentiality into play. This would prevent the communication of surrendered information to the branch of the tax authority in charge of the enforcement of other tax legislation. The conclusion of this thesis is that there are elements of the suggested law that could deter business persons from applying for an APA. The usage of APA:s is in many ways favourable for society and business persons alike. Legislation regarding APA:s should with this in mind be shaped in a way that creates balance between the applying business person and the administering authority to maximize the efficiency of national legislation regarding Advance Pricing Agreements. (Less)
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author
Andersson, Claes
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Skatterätt
language
Swedish
id
1555681
date added to LUP
2010-03-08 15:55:18
date last changed
2010-03-08 15:55:18
@misc{1555681,
  abstract     = {Skatteverket (The Swedish Tax Authority) has by order from the Swedish government investigated the possibility of instituting a national law to regulate Advance Pricing Agreements, APA:s or ''Prissättningsbesked''. The investigation has led to a law proposal that will standardize the application and giving of such Advance Pricing Agreements. The reason for this initiative is the problems with internal pricing. A business person who utilises internal pricing not consistant with market prices could use this discrepancy to freely transfer income between different tax jurisdictions. In this way choosing in what country the income should be taxed and minimizing income tax by choosing a country with low income taxation. There are both national and international laws that aim to combat this form of tax evasion. Such legislation can lead to international economic double taxation wich can impose significant costs for the business person concerned. Hence there are benefits for both the state and the tax payer in an APA. It guarantees that the prices utilized by the business person are at arms length while at the same time removes the risk for the tax payer of being targeted by legislative measures that could potentially lead to significant costs. An APA could be described as an agreement between the business person and one or more national tax authority. By establishing a row of conditions regarding the business persons internal pricing policies, for example the price setting method used, the APA can guarantee that the internal prices of the business person are at arms length. As mentioned above there is a lot of international legislation, for example from the OECD and the European Commission, that advocate the usage of APA:s as a means for eliminating the problem with incorrect internal pricing. The presented Swedish law proposal has taken the international law sources into account and is in accordance with their recommendations. According to the proposal, Skatteverket will be the authority in charge of administering the APA-system. The administering will be conducted within the normal administration of the Swedish tax system. The basis for the questions discussed in this thesis is that information concerning the applicants business, which will need to be disclosed to Skatteverket in the negotiations, must be handled in a way so that the disclosure does not place the applicant in a more burdensome position as a consequence of the application. There is a risk that this disclosure of information could lead to a more thorough inspection of the applicants business by the tax authority. The details regarding the applicants business that will be required for the creation of an APA will in no small part be such that they do not fall under any statutory information obligation. The law proposal suggests that Skatteverket, to be able to verify the information handed over by the applicant in APA procedings, is given the mandate to carry out audits in the form of ''taxeringsbesök'' and ''taxeringsrevision'' as laid down in chapter 3 Taxeringslagen. Out of these two control instruments, especially ''taxeringsrevision'' allows extensive inspection of the applicants business. ''Taxeringsbesök'' on the other hand is always carried out in collaboration with the audited party. Several of the parties to whom the law proposal has been referred for consideration has been critical of the suggestion that the law will allow ''taxeringsrevision'' for the control of gathered information. The suitability in the utilization of ''taxeringsbesök'' and ''taxeringsrevision'' are two of the issues examined in this thesis. The conclusion is that the needed level of control can be maintained even if the administrating authority is not given the right to conduct ''taxeringsrevision''. This way the balance between the applicant and the administering authority will also be maintained. Apart from the suitability questions regarding the suggested control instruments, the law proposal is also analysed with regards to its secrecy rules. Information that is handed over in the course of an APA-application shall, according to the proposal, be regarded as confidential just as all other information concerning the economic conditions of private individuals. The surrendered information is not confidential to the extent that it cannot be communicated within Skatteverket. Because of this there is a risk that the information could also be used within Skatteverket to establish and charge income tax. This fact is also critizised by the parties to which the proposal has been referred. Theese parties maintain that information handed over in APA proceedings should be classified to the extent that it can not be used for other purposes than establishing and maintaining the APA. A solution to this problem could be that the body within the tax authority in charge of handling the pricing agreements is organized in a way that would make it an independent branch (''självständig verksamhetsgren''). Doing this would bring intraorganizational confidentiality into play. This would prevent the communication of surrendered information to the branch of the tax authority in charge of the enforcement of other tax legislation. The conclusion of this thesis is that there are elements of the suggested law that could deter business persons from applying for an APA. The usage of APA:s is in many ways favourable for society and business persons alike. Legislation regarding APA:s should with this in mind be shaped in a way that creates balance between the applying business person and the administering authority to maximize the efficiency of national legislation regarding Advance Pricing Agreements.},
  author       = {Andersson, Claes},
  keyword      = {Skatterätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {En undersökning från ett rättssäkerhetsperspektiv av reglerna om uppgiftskontroll och sekretess i förslaget till svensk APA-lagstiftning.},
  year         = {2009},
}