Generalklausulens fjärde punkt i Lag (1995:575) mot skatteflykt: I ljuset av Peru-upplägget
Independent thesis Basic level (degree of Bachelor), 10 credits / 15 HE creditsStudent thesis
The taxation of various kinds of income which Sweden requires taxpayers to pay results in people undertaking sophisticated tax schemes to avoid paying tax . As a result of this Sweden had to develop its tax laws and insert a general clause in the legislation because the legislator wanted a more preventive effect. This preventive effect results in that the clause is applicable to more various types of tax situations. The clause, found in § 2 law (1995:575) against tax treaty override, states four requisites that must be met for a procedure to be considered tax treaty override. The relevant point for this paper is the fourth item which created interpretation problems among courts. Rulings relevant for this thesis are the proceedings regarding the Peru-agreements. The agreements led to taxpayers only paying Peruvian tax and escaping the much higher Swedish tax. The 2 § 4 paragraph shall be interpret in relation to international law to see how a cross-border proceedings shall be subject to tax law. The thesis explains that a teleological approach may be preferable to interpret the fourth item, also that the principle of legality might be set aside in favour of the aim the legislator wants to achieve with the clause. A discussion concerning whether the articles the OECD has developed to prevent tax treaty override can clarify the interpretation of § 2 paragraph 4 item in the law of tax treaty override will be held. From the court cases, it can also be seen that a common intention of the parties to prevent tax treaty override can be inferred from the contract, which affects the interpretation of the fourth item. The contract includes an article on taxation which is used to escape Swedish taxation. This article can legitimize the arrangement if the Peruvian company is active, but the procedure is questionable when there is no activity in the Peruvian company.
Place, publisher, year, edition, pages
2012. , 39 p.
Skatteflykt, OECD, Peru-upplägg, legalitetsprincip, generalklausul, Lag (1995:575) mot skatteflykt
IdentifiersURN: urn:nbn:se:hj:diva-19235OAI: oai:DiVA.org:hj-19235DiVA: diva2:546177
Subject / course
IHH, Commercial Law
UppsokSocial and Behavioural Science, Law