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EG-rättens inverkan på svensk fåmansföretagslagstiftning - En granskning av skatterättsliga hinder för etableringsfriheten inom EU

Jasper, Andreas (2002)
Department of Law
Abstract
In this Master´s thesis I deal with the impact of European Community Law on chapter 57 regulations of the Swedish National Income Tax Act, IL, and regulations connected thereto. These rules specifically governs the taxation of shareholders in Swedish closely hold small and medium sized enterprises, SME:s, fåmansföretag. My purpose is thereby to investigate the principal question: whether or not chapter 57 IL, states conditions which are to be considered as fiscally discriminatory in accordance to Art. 12 and a breach of Art. 43 EC. The Swedish Supreme Administrative Court delivered a judgement on 17th of August 2000, RÅ 2000 ref. 47&semic Case 1534/1998, which stated that the conditions laid down in 8 § chapter 57 IL concerning the... (More)
In this Master´s thesis I deal with the impact of European Community Law on chapter 57 regulations of the Swedish National Income Tax Act, IL, and regulations connected thereto. These rules specifically governs the taxation of shareholders in Swedish closely hold small and medium sized enterprises, SME:s, fåmansföretag. My purpose is thereby to investigate the principal question: whether or not chapter 57 IL, states conditions which are to be considered as fiscally discriminatory in accordance to Art. 12 and a breach of Art. 43 EC. The Swedish Supreme Administrative Court delivered a judgement on 17th of August 2000, RÅ 2000 ref. 47&semic Case 1534/1998, which stated that the conditions laid down in 8 § chapter 57 IL concerning the salary-rule, löneregeln, was incompatible with the freedom of establishment and a breach of Art. 43 EC. The problems dealt with, mainly emanates from the condition in chapter 57 IL. The 4 § states that a shareholder which holds more than 50 per cent of the shares and the votes in a Swedish SME, in which he is actively working with a significant importance for the enterprise, is to be defined as qualified. A significance of such qualification is that the tax ministry will treat a certain amount of the dividend exceeding a certain limit, gränsbeloppet, as earned income, progressively taxable at a maximum rate of 56 per cent. The shareholder has a preference of not being considered as qualified, since he then will be taxable at a rate of 30 per cent in income of capital. Never the less, some tax relives are only admitted to qualified shareholders, as in the event of a reorganisation of the enterprise, fåmansföretaget. Dealing specifically with formally qualified shareholders, which are residents of other European Union member states than Sweden, it could be argued that these tax relieves should as well come to their benefit in accordance to the principle of equal treatment, Art. 12 EC. Since foreign resident shareholders are not possibly taxable in the category of earned income at 56 per cent, formally qualified foreign shareholders are neither entitled to such relieves. The Swedish qualified shareholder, however, remains subject to the following question: If foreign resident shareholders in Swedish SME could influence the taxation of Swedish shareholders, in regard to their status as qualified, to the extent that they can not longer benefit from certain tax relieves? The following main conclusions are to be drawn from the research on potentially discriminatory obstacles and restrictions to the freedom of establishment in chapter 57 IL and regulations dealing with the taxation of shareholders in Swedish SME:s: · Foreign shareholders in the SME and in daughter companies established in other European Union member states are to be considered as technically qualified, whereas a Swedish resident shareholder under equal conditions would had been considered as qualified, Art. 12 EC. · Tax relieves laid down in Kupongskattelagen, does not correspond to the tax relieves laid down in chapter 43 in the Swedish National Income Tax Act, IL. By consequence, non-resident shareholders will not be subjects to such tax relieves. · Swedish qualified shareholders are made subject to harder taxation by conditions, which are fiscally preventing Swedish qualified shareholders from considering foreign shareholders in the Swedish SME in the event of an international reorganisation. By consequence these conditions are potentially infringing the principle of equal treatment and the freedom of establishment, Art. 12 and Art. 43 EC. In accordance to the judgements of the Swedish Supreme Administrative Court and The ECJ: RÅ 2000 ref. 47 (Case 1534/1998, Case 4869/1998), RÅ 1999 ref. 62, RÅ 2000 ref. 40, RÅ 2000 ref. 17 and ECJ C-200/98, the Swedish National Income Tax Act states some conditions which potentially could be violating the freedom of establishment, Art. 43 EC. By consequence one of the instruments safeguarding the freedom of competition and the inner market is disturbed. With respect to the obligations laid down in article 10 EC and the measures expected to be pursued by European Union member states in correspondence to mainly the principle of equal treatment and the abolishment of non justified restrictions, Art. 43 EC is to be upheld trough out the whole of chapter 57 IL and other regulations dealing with the taxation of qualified shareholders in Swedish SME:s, fåmansföretag. (Less)
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author
Jasper, Andreas
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Konkurrensrätt, EG-rätt, Skatterätt
language
Swedish
id
1558672
date added to LUP
2010-03-08 15:55:22
date last changed
2010-03-08 15:55:22
@misc{1558672,
  abstract     = {In this Master´s thesis I deal with the impact of European Community Law on chapter 57 regulations of the Swedish National Income Tax Act, IL, and regulations connected thereto. These rules specifically governs the taxation of shareholders in Swedish closely hold small and medium sized enterprises, SME:s, fåmansföretag. My purpose is thereby to investigate the principal question: whether or not chapter 57 IL, states conditions which are to be considered as fiscally discriminatory in accordance to Art. 12 and a breach of Art. 43 EC. The Swedish Supreme Administrative Court delivered a judgement on 17th of August 2000, RÅ 2000 ref. 47&semic Case 1534/1998, which stated that the conditions laid down in 8 § chapter 57 IL concerning the salary-rule, löneregeln, was incompatible with the freedom of establishment and a breach of Art. 43 EC. The problems dealt with, mainly emanates from the condition in chapter 57 IL. The 4 § states that a shareholder which holds more than 50 per cent of the shares and the votes in a Swedish SME, in which he is actively working with a significant importance for the enterprise, is to be defined as qualified. A significance of such qualification is that the tax ministry will treat a certain amount of the dividend exceeding a certain limit, gränsbeloppet, as earned income, progressively taxable at a maximum rate of 56 per cent. The shareholder has a preference of not being considered as qualified, since he then will be taxable at a rate of 30 per cent in income of capital. Never the less, some tax relives are only admitted to qualified shareholders, as in the event of a reorganisation of the enterprise, fåmansföretaget. Dealing specifically with formally qualified shareholders, which are residents of other European Union member states than Sweden, it could be argued that these tax relieves should as well come to their benefit in accordance to the principle of equal treatment, Art. 12 EC. Since foreign resident shareholders are not possibly taxable in the category of earned income at 56 per cent, formally qualified foreign shareholders are neither entitled to such relieves. The Swedish qualified shareholder, however, remains subject to the following question: If foreign resident shareholders in Swedish SME could influence the taxation of Swedish shareholders, in regard to their status as qualified, to the extent that they can not longer benefit from certain tax relieves? The following main conclusions are to be drawn from the research on potentially discriminatory obstacles and restrictions to the freedom of establishment in chapter 57 IL and regulations dealing with the taxation of shareholders in Swedish SME:s: · Foreign shareholders in the SME and in daughter companies established in other European Union member states are to be considered as technically qualified, whereas a Swedish resident shareholder under equal conditions would had been considered as qualified, Art. 12 EC. · Tax relieves laid down in Kupongskattelagen, does not correspond to the tax relieves laid down in chapter 43 in the Swedish National Income Tax Act, IL. By consequence, non-resident shareholders will not be subjects to such tax relieves. · Swedish qualified shareholders are made subject to harder taxation by conditions, which are fiscally preventing Swedish qualified shareholders from considering foreign shareholders in the Swedish SME in the event of an international reorganisation. By consequence these conditions are potentially infringing the principle of equal treatment and the freedom of establishment, Art. 12 and Art. 43 EC. In accordance to the judgements of the Swedish Supreme Administrative Court and The ECJ: RÅ 2000 ref. 47 (Case 1534/1998, Case 4869/1998), RÅ 1999 ref. 62, RÅ 2000 ref. 40, RÅ 2000 ref. 17 and ECJ C-200/98, the Swedish National Income Tax Act states some conditions which potentially could be violating the freedom of establishment, Art. 43 EC. By consequence one of the instruments safeguarding the freedom of competition and the inner market is disturbed. With respect to the obligations laid down in article 10 EC and the measures expected to be pursued by European Union member states in correspondence to mainly the principle of equal treatment and the abolishment of non justified restrictions, Art. 43 EC is to be upheld trough out the whole of chapter 57 IL and other regulations dealing with the taxation of qualified shareholders in Swedish SME:s, fåmansföretag.},
  author       = {Jasper, Andreas},
  keyword      = {Konkurrensrätt,EG-rätt,Skatterätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {EG-rättens inverkan på svensk fåmansföretagslagstiftning - En granskning av skatterättsliga hinder för etableringsfriheten inom EU},
  year         = {2002},
}