Change search
ReferencesLink to record
Permanent link

Direct link
I strid med lagstiftningens syfte: En analys av det fjärde rekvisitet i skatteflyktslagens 2 § utifrån legalitetsprincipen
Jönköping University, Jönköping International Business School, JIBS, Commercial Law.
2012 (Swedish)Independent thesis Basic level (degree of Bachelor), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

Under Swedish tax law; the general clause in the Tax Avoidance Act is a method to prevent tax evasion. The purpose of the general clause is to prevent any tax avoidance procedures that the legislator has not been able to foresee. For the general clause to be applicable, four prerequisites need to be met. This thesis analyses the fourth prerequisite based on the principle of legality. The prerequisite concludes that a determination of the tax base, based on the procedure in question, is in conflict with the purpose of the legislation. The prerequisite has been criticized for being difficult to apply. As tax laws are applied beyond the scope of the legislation, it has also been considered that taxation is made without statutory basis, which is conflicting with the principle of legality.

The principle of legality requires the application of law to be predictable and without arbitrary. Therefore, in order to collect taxes there is a requirement of legal authority. Of this requirement, it has been deduced a prohibition on application by analogy of tax laws. Of relevance to the relation between the fourth prerequisite and the principle of legality is what legal value the principle is considered to have. It has been discussed whether the principle of legality can be codified in the constitution.

It has been found that the principle of legality is expressed in the Instrument of Government. It is not considered to be any controversies between the fourth prerequisite and the principle of legality, as there is a legal authority for the taxation that occurs under the general clause. It is also not considered to be any illicit delegations, as the courts only rule on whether the practice is in contrast to tax legislation purposes, and not legislate. The taxpayer therefore has to take the purpose of the legislation into consideration when measures are taken for tax avoidance purposes.

Place, publisher, year, edition, pages
Keyword [sv]
Skatteflyktslagen, lagstiftningens syfte, legalitetsprincipen
National Category
URN: urn:nbn:se:hj:diva-19135OAI: diva2:543595
Social and Behavioural Science, Law
Available from: 2012-08-31 Created: 2012-08-08 Last updated: 2012-08-31Bibliographically approved

Open Access in DiVA

fulltext(437 kB)383 downloads
File information
File name FULLTEXT01.pdfFile size 437 kBChecksum SHA-512
Type fulltextMimetype application/pdf

Search in DiVA

By author/editor
Bartley, Carolin
By organisation
JIBS, Commercial Law

Search outside of DiVA

GoogleGoogle Scholar
Total: 383 downloads
The number of downloads is the sum of all downloads of full texts. It may include eg previous versions that are now no longer available

Total: 147 hits
ReferencesLink to record
Permanent link

Direct link