Stadigvarande vistelse - en komparativ studie mellan Sverige och Danmark, av funktionen ”att vistas”

Sammanfattning

Since 1999, when the new Income Tax Act (SFS 1999:1229) came into force, Swedish tax legislation has contained three alternative criteria stipulating when a natural person is to be considered liable for unlimited tax on their global income in Sweden. This essay examines one of these three criteria, namely that a person who resides permanently in Sweden is subject to unlimited tax liability, as stated in Chapter 3, Section 3 of the Income Tax Act. In an era characterized by increased international mobility, the question of where a per-son has their tax residence has become increasingly important. In 2023, the Swedish Tax Agency presented a memorandum with proposals to revise the Swedish regulations on permanent residence. Against this background, this thesis examines what the function of “residing” means in Sweden through a comparison with Denmark and its regulations on residence, as well as through a comprehensive international perspective. The study aims to examine how Swedish regulations relate to Danish regulations, and how the regulations relate to the principles of legal certainty and predictability. To answer the questions posed in this thesis, a combination of the legal dog-matic method and the comparative method is used. The legal dogmatic method is used to determine what the applicable law is in both Swedish and Danish law, using laws, preparatory works, case law, and doctrine in the field. The comparative method is based primarily on Kamba's three phases for compar-ing different legal systems, as well as Zweigert and Kötz's normative approach to presenting arguments de lege ferenda to identify similarities, differences, and potential changes to the applicable law. The investigation shows that Swedish regulations governing permanent resi-dence are characterized by an open legal wording that lacks a time limit speci-fied in law. The assessment of what constitutes permanent residence is largely left to the legal practitioner, who, through interpretation of preparatory works, makes an overall assessment of the individual's residence pattern and other objective circumstances over time. Practice indicates that a stay exceeding six months is the main rule for when a stay is permanent, but that deviations oc-cur depending on the circumstances of the individual case. The comparison with Denmark and the initial international overview show a clear discrepancy in how the function of “residing” is regulated. Sweden relies heavily on case law and the interpretation of the law, while Denmark and sev-eral other European countries have chosen to establish clear time limits in law, either by stipulating a stay exceeding six months or exceeding a fixed number of days. Through an analysis of what is presented as applicable law in both Sweden and Denmark, the essay concludes that the current Swedish regulation of permanent residence lacks predictability for the individual. This is because the requirements for permanent residence in Sweden are not presented through legislation but through preparatory work and inconsistent practice. The flexi-bility that the legislator wishes to achieve for the application of the law occurs at the expense of legal certainty. Based on the comparative analysis and the Swedish Tax Agency's memorandum from 2023, the thesis argues for a revi-sion of the requirement for permanent residence, where the law defines what permanent means, for example, through a specific number of days during a calendar year or by establishing in law that permanent means a stay of at least six months.