Slutnurrat för kommunerna?
Räntesnurror ur ett kommunalt perspektiv.
Deduction limitations on interestInterest deductions24th chapter of the Swedish Income Tax LawThe principle of legalityThe Swedish Tax AuthorityMunicipal enterpriseBusiness purposeRänteavdragsbegränsningarRänteavdragRäntesnurrorKommunal verksamhetAffärsmässigt motiveratVentilenSkatteverketLegalitetsprincipen24 kapitlet inkomstskattelagen
On the 1st of January 2009, a new regulation regarding interest deduction limitations was enforced. The aim was to prevent tax structure with interest deductions in a community of interest. The changes meant that intra-group share transfers, which generates an intra-group loan structure, can lead to borrower losing their right to deduct interest expenses. Except from the main rule two exceptions were also introduced. These eliminates the limitations, and accept the deductibility despite the above conditions. The exceptions are named ten-percent rule and ?ventilen?. It was found that Swedish municipal communities also engaged in such arrangements. As a result of this discovery the Swedish Tax Authority was delegated the task to investigate companies that are in a community of interest with a fully or partially exempted taxpayer in general and its relationship to the tax structure of interest deductions in particular.The application of ?ventilen? creates problems regarding the definition of business purpose as well as the relationship between business and organizational purposes. The assessment of organizational purposes is of particular importance for municipal communities of interest where transparency, control and quality assurance are of great importance. Needs of rationalization and organizational changes occurs continually within municipal community groups. Unclarity due to organizational purpose makes these changes, within the municipal communities, problematic.Both municipal communities as well as experts regard the deduction limitations due to municipal community interest unclear. Due to the unclarity a few municipal communities have chosen to switch their internal loans to ones through Kommuninvest. This to avoid the rising risk-taking as any interest deductibility limitations may entail. The Swedish High Administrative Court has in their judgements expressed their support for this kind of loan structure. It is unclear how the law concerning ?ventilen? should be applied in regards to municipal communities interest, which also raises questions about ?ventilens? compatibility with the principle of legality. The High Swedish Administrative Court has solved the problem, at least for now, by approving an alternative approach, the one including Kommuninvest, which thereby reduces the stress for the Court to come to a conclusion regarding ?ventilens? proper functioning and application.