Investeringssparkonto och avräkning av utländsk källskatt - Om avräkningslagens räckvidd vid innehav av utländska aktier på investeringssparkonto

Sammanfattning

The Swedish Investment Savings Account (ISK) is a lump-sum taxed savings vehicle introduced on 1 January 2012. Instead of being taxed on actual dividends and capital gains, the account holder pays an annual tax calculated on a deemed capital base approximating the portfolio’s expected return. When foreign listed shares are held in an ISK, a complication arises: the source state’s right to withhold tax on actual dividends is unaffected by the Swedish deemed income system. The purpose of this thesis is to examine whether the Swedish Foreign Tax Credit Act (avräkningslagen, 1986:468) permits effective credit for foreign withholding tax on dividends from foreign shares held in an ISK, and whether the Act’s construction achieves the purpose intended by the legislature. Legal dogmatic method is applied to the interaction between the Investment Savings Account Act (2011:1268), Chapter 42 of the Income Tax Act (1999:1229) and the Foreign Tax Credit Act. The deemed income classification of the ISK return as other income under Article 22 of the Nordic Tax Treaty, established by the Supreme Administrative Court in HFD 2013 ref. 34, is examined as a prerequisite for the credit analysis. The Foreign Tax Credit Act permits credit in a formal sense but does not guarantee effective credit in a substantive sense. The credit limitation rules in Chapter 2, Sections 10a—10b of the Act structurally cap the annual credit at the Swedish tax on deemed income. When the portfolio’s dividend yield consistently exceeds the deemed income rate, the excess withholding tax cannot be credited and lapses after the five-year carryforward period. The Act does bot achieve its stated purpose under normal market conditions.