Uttagsbeskattning vid gränsöverskridande fusioner
Är den svenska regleringen i 22 kap. 5 § 2 p. IL. förenlig med etableringsfriheten?
EtableringsfrihetUttagsbeskattningOkvalificerad fusionGränsöverskridandeMalta-måletNational Grid-måletPortugal-målet
Freedom of establishment statutes that restriction of citizens within the EU can not occur. A citizen should be free to establish themselves in a Member State and not be hindered if they choose to leave the State. "Citizens" also includes legal persons such as companies. Legislations in Member States which prevents the freedom of establishment shall be prohibited. When a company chooses to merge across borders and thus cease to be a Swedish company, the Swedish rules for exit taxation applies. This means that assets and unrealized gains will be taxed immediately. If the company instead chose to reorganize within the country, or to do nothing at all, a tax will only arise when the asset is sold. This different treatment could constitute a restriction of a company's freedom of establishment and thus discourage companies from moving to or from Sweden.The Malta case resulted in that the legislature introduced rules for deferment of payment of tax. Today there is an opportunity for companies that choose to move abroad to obtain a suspension of the payment of taxes just to be more in line with the freedom of establishment. Companies must meet certain conditions in order to be granted a deferral. If a company carries out a merger that falls within Chapter 22. 5 § 2 p. IL, exit taxation will be applied. There is no possibility for a company, which is subject to exit taxation according to Chapter 22. 5 § 2 p. IL, to be subject to deferral rules since 2 p. is not covered by the rules of deferral. Only mergers according to Chapter 22. 5 § 4 and 5 p. IL. are subject to deferral.There are less restrictive measures to take than immediate taxation which is more in line with the freedom of establishment. Examples of less restrictive measures are an extension of the already existing deferral rules or taxing companies on the disposal of the assets.