Konstlat upplägg - En analys av 24 kap. 19 a § andra stycket IL i ljuset av proportionalitet och rättssäkerhet.

Sammanfattning

This thesis examines the criterion “artificial arrangement” in Chapter 24, Section 19 a, second paragraph of the Swedish Income Tax Act. The criterion was introduced through Government Bill 2025/26:20 as part of the adjustment of the Swedish targeted interest deduction limitation rules to EU law. The thesis analyses how the criterion should be understood and applied in light of the EU law requirements of proportionality, legal certainty and foreseeability, as well as Swedish tax law requirements of legality and foreseeable taxation. Member States have a legitimate interest in counteracting tax avoidance and wholly artificial arrangements. That interest, however, does not give them unlimited discretion to restrict interest deductions in cross-border group situations. The case law of the Court of Justice shows that national anti-abuse rules must be sufficiently limited in scope and must not be based on a general presumption of tax avoidance. A central issue is therefore how to draw the line between debt relationships that lack real economic substance and intra- group transactions that have a commercial function, even if they also result in a tax advantage. Methodologically, the thesis is mainly based on a legal-dogmatic method, supplemented by an EU law method. The material consists of Swedish legislation, preparatory works, Swedish case law, case law from the Court of Justice and legal scholarship. Particular attention is paid to case law concerning wholly artificial arrangements, intra-group debt relationships and arm’s length terms. As the analysis shows, the criterion “artificial arrangement” is, in itself, close to the line drawn by the Court of Justice for when Member States may intervene against abuse and wholly artificial arrangements. The problem therefore does not primarily lie in the choice of criterion, but in how broadly it may be used in legal application. If the provision is used as a general tool against tax-driven intra-group transactions, it risks going beyond what the principle of proportionality allows. A tax advantage can therefore not, on its own, support the conclusion that a debt relationship is artificial. Concrete circumstances must also show that the debt lacks a real commercial function or economic substance. In conclusion, Chapter 24, Section 19 a, second paragraph of the Income Tax Act may be compatible with EU law, but only if the criterion is interpreted and applied restrictively. Its application should remain closely connected to the abuse doctrine developed by the Court of Justice and be based on objective and verifiable circumstances. If the application instead shifts into a broader assessment of tax planning or general commerciality, there is a risk of insufficient foreseeability and disproportionate application.