Samma eller likartad verksamhet och utomståenderegeln – En rättslig analys i ljuset av HFD 2023 ref. 11 och SRN:s förhandsbesked från 2024

Sammanfattning

The 56th and 57th chapters in the Swedish Income Tax Act entails special tax regulations for shareholders in closed companies which aims to counteract unauthorized circumvention of tax law. The normal tax rules must be applied if non-active shareholders own a sufficiently large share in the company. In that case, the “outsider rule”, which can be found in the fifth paragraph in the 57th chapter may be applicable. This is not the case, however, if the external shareholders engage in same or similar activities within other closed companies. The thesis investigates the interaction between the outsider rule and provisions regarding similar activities. Due to the lack of clear definitions in statutory text and preparatory works, guidance is derived from case law. The Supreme Administrative Court (HFD) previously took a restrictive stance on defining outsider ownership related to similar activities. However, this changed with the judgement HFD 2023 ref. 11, which introduced the consideration of additional circumstances, particularly if the risk of income conversion is low. This suggests that HFD interpreted the rules based on their intended purpose rather than literal wording. On February 20th, 2024, the Council for Advance Tax Rulings (SRN) issued a preliminary ruling similar to HFD 2023 ref. 11, but with a notable distinction: the outsider ownership held shares both directly and indirectly in the closed company. Consequently, the company was deemed to engage in similar activities, rendering the outsider rule inapplicable. SRN's assessment does not align with the precedent set by HFD 2023 ref. 11, as the council did not consider the low risk of income conversion as significant. This ambiguous legal interpretation is criticized in the thesis based on the principle of legality in tax law, which requires predictability for taxpayers. SRN's assessment indicates that the legal situation is not sufficiently predictable, highlighting the need for HFD to clarify the relationship between provisions during the review of the preliminary ruling.