Gränsöverskridande resultatutjämning - ur ett svenskt perspektiv
(2007)Department of Law
- Abstract
- Member States of the European Union are not allowed to have tax legislation which restricts the free movement on the internal market. The tax legislation of Sweden prescribes that a national company (the parent company) which holds at least nine tenths of the capital of another national company, (the subsidiary company), may deduct an asset transfer made in purpose to improve the subsidiary's taxable income. Thereby it is only possible to make deductible financial transfers between group companies that is taxable within Sweden, this is leading to foreign companies not taxable in Sweden is being given a different treatment. In a number of cases the European Court of Justice (ECJ) has considered national tax law to be contrary to Treaty... (More)
- Member States of the European Union are not allowed to have tax legislation which restricts the free movement on the internal market. The tax legislation of Sweden prescribes that a national company (the parent company) which holds at least nine tenths of the capital of another national company, (the subsidiary company), may deduct an asset transfer made in purpose to improve the subsidiary's taxable income. Thereby it is only possible to make deductible financial transfers between group companies that is taxable within Sweden, this is leading to foreign companies not taxable in Sweden is being given a different treatment. In a number of cases the European Court of Justice (ECJ) has considered national tax law to be contrary to Treaty provisions. The Swedish tax legislation's consistence to Community law and the freedom of establishment has lately caused a vivid discussion, above all since the judgment in the Marks &&semic Spencer (C-446/03) case made by ECJ in 2005. In Sweden the Council for Advanced Tax Ruling as well as the national Courts has also payed great attention to the judgments recently made by the ECJ, especially the Marks &&semic Spencer case, in its many rulings concerning the Swedish tax legislation's consistence to Community law. The Council for Advanced Tax Ruling's opinion is that a parent company's possibilities to make deductible financial transfers to a subsidiary company, are to be seen as exhausted when the subsidiary is to be liquidated or when its carry-forward period has expired. This dissertation shows that the legal situation regarding a parent company's possibilities to make deductible financial transfers to a subsidiary company are to be seen as exhausted is somehow quite uncertain since the matter still has to be determined by a higher court. It is also my opinion that the conception ''exhausted its possibilities'' is to comprise more situations such as when a subsidiary is bankrupt, under composition without losses or when its debts are being redeveloped. My conclusion is therefore that the Council for Advanced Tax Ruling makes correct, but limited, judgments and my hope is that the legal situation will be a bit more understandable when higher courts has reached its verdict in the matter. But it is also wise to await the ECJ's further developments since it is hard to draw a conclusion from the Marks &&semic Spencer case only. Finally the dissertation also questions the role of the Council of Advanced Tax Ruling and whether the above mentioned conclusions are applicable on other Swedish tax laws that may be seen incompatible with Community law. (Less)
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http://lup.lub.lu.se/student-papers/record/1558239
- author
- Hemsedahl, Evelina
- supervisor
- organization
- year
- 2007
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Skatterätt
- language
- Swedish
- id
- 1558239
- date added to LUP
- 2010-03-08 15:55:22
- date last changed
- 2010-03-08 15:55:22
@misc{1558239,
abstract = {{Member States of the European Union are not allowed to have tax legislation which restricts the free movement on the internal market. The tax legislation of Sweden prescribes that a national company (the parent company) which holds at least nine tenths of the capital of another national company, (the subsidiary company), may deduct an asset transfer made in purpose to improve the subsidiary's taxable income. Thereby it is only possible to make deductible financial transfers between group companies that is taxable within Sweden, this is leading to foreign companies not taxable in Sweden is being given a different treatment. In a number of cases the European Court of Justice (ECJ) has considered national tax law to be contrary to Treaty provisions. The Swedish tax legislation's consistence to Community law and the freedom of establishment has lately caused a vivid discussion, above all since the judgment in the Marks &&semic Spencer (C-446/03) case made by ECJ in 2005. In Sweden the Council for Advanced Tax Ruling as well as the national Courts has also payed great attention to the judgments recently made by the ECJ, especially the Marks &&semic Spencer case, in its many rulings concerning the Swedish tax legislation's consistence to Community law. The Council for Advanced Tax Ruling's opinion is that a parent company's possibilities to make deductible financial transfers to a subsidiary company, are to be seen as exhausted when the subsidiary is to be liquidated or when its carry-forward period has expired. This dissertation shows that the legal situation regarding a parent company's possibilities to make deductible financial transfers to a subsidiary company are to be seen as exhausted is somehow quite uncertain since the matter still has to be determined by a higher court. It is also my opinion that the conception ''exhausted its possibilities'' is to comprise more situations such as when a subsidiary is bankrupt, under composition without losses or when its debts are being redeveloped. My conclusion is therefore that the Council for Advanced Tax Ruling makes correct, but limited, judgments and my hope is that the legal situation will be a bit more understandable when higher courts has reached its verdict in the matter. But it is also wise to await the ECJ's further developments since it is hard to draw a conclusion from the Marks &&semic Spencer case only. Finally the dissertation also questions the role of the Council of Advanced Tax Ruling and whether the above mentioned conclusions are applicable on other Swedish tax laws that may be seen incompatible with Community law.}},
author = {{Hemsedahl, Evelina}},
language = {{swe}},
note = {{Student Paper}},
title = {{Gränsöverskridande resultatutjämning - ur ett svenskt perspektiv}},
year = {{2007}},
}