Svensk uttagsbeskattnings förenlighet med etableringsfriheten

The Swedish exit tax legislation in Chapter 22. § 5 p. 4 IL states that businesses who change its tax residence to another Member State within the EES are taxed as having its assets sold at the time of the change of domicile. This legislation was declared incompatible with the freedom of establishment in case RÅ 2009 ref. 30 due to the fact that businesses who changed tax residence were treated worse than businesses that remained within the Member State of origin. Of importance for the outcome of the case was the fact that ECJ had declared exit tax incompatible with the freedom of establishment in two previous cases. In connection with RÅ 2008 ref. 30 the Commission also addressed requirements for Sweden to abolish the restrictive legislation through a reasoned opinion.In the aftermath of RÅ 2008 ref. 30 the legislator drafted a suggestion for new legislation which aimed to make the exit tag legislation in IL compatible with the freedom of establishment. The legislator made clear that the communication from the Commission on exit taxation was of great significance in formulating the legislation, particularly the requirement from the Commission that exit tax ought not to lead to immediate tax consequences for the businesses. The suggested legislation made businesses able to defer payment of the exit tax by introducing a new chapter in SBL. Thus did not the wording of the exit tax legislation in IL change. The suggested legislation was heavily criticized by the respondents in the preparatory legislation and also in legal doctrine. The legislation was, however, adopted and the deferment legislation in Chapter 17a SBL came into force 1 January 2010.The question that arises is whether this addition to the exit tax legislation is a sufficient action to achieve the objective of the legislation.It can be concluded that the situation for businesses changing tax residence is not significantly affected by the introduction of the deferment legislation in Chapter 17a SBL. The fact remains that business changing tax residence still are adversely affected due to the fact that taxation occurs on the exit date, which can have the effect of these businesses being taxed in an earlier phase than resident businesses. Consequently the legislation continue to impose immediate tax consequences in certain cases. The fact that the legislation could be achieved in a less restrictive manner by placing the time of taxation at the real disposal of the assets makes the legislation disproportionate. Furthermore, it is not obvious that the conditions which the deferment is associated with should be seen as proportionate either. Due to the fact that it is ascertain that the conditions in some cases can be costly in terms of valuation costs and that the purpose of the legislation could be achieved in a less restrictive manner by applying directives in the field of mutual assistance and recovery of claims instead of an annual deferment procedure. The conditions could therefore be considered disproportionate in relation to the purpose of the legislation.Nevertheless, the main reason for arguing that the Swedish exit tax legislation should be considered as incompatible with the freedom of establishment is the fact that the legislation does not take full account of the taxed assets potential decrease in value, capable of arising after the businesses transfer of tax residence. Through ECJ-case law it can be noted that decrease in value must be taken into account by either the state of origin or the host state to be considered proportionate. The Swedish exit tax legislation is therefore incompatible with the freedom of establishment in all cases where the host state does not take notice of such decrease in value.

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