Skatteplanering och kapitaliseringsfrågor : En skatterättslig studie av olika metoder att ingripa mot internationell skatteplanering med under- respektive överkapitaliserade bolag

Sammanfattning: The purpose of this thesis is to study different methods of challenging international tax planning schemes involving thinly capitalised Swedish subsidiaries of foreign companies and thickly capitalised foreign subsidiaries of Swedish companies. The thesis also examines the civil and tax law consequences of both issuing letters ofcomfort, and fulfilling the obligations they create.In its analysis of the tax planning issue, the thesis examines five methods of challenging international tax planning schemes, which Swedish tax authorities can either currently use or adopt in the future. These five are substance over form analysis, the anti-avoidance statute, tax treaty provisions, the arm's length rule and thincapitalisation legislation.While substance over form analysis can probably be used both in cases thin- and thick capitalisation, it is more likely to be applied in the latter. This apparently also holds true for the anti-avoidance statute. In various recently adopted tax treaties, the Swedish government has begun limiting the tax-exempt status of certain dividendsreceived from foreign companies which have income that has been taxed at a low foreign rates. Since thickly capitalised companies are generally taxed at low rates because of various types of tax incentives or off-shore legislations, these treaty provisions also include rules regarding dividends from thickly capitalised companies.The present Swedish arm's length rule cannot be applied to the actual capital structure of thinly capitalised Swedish subsidiaries or thickly capitalised foreign ones. At present, Sweden has no legislation which specifically deals with thin capitalisation scenarios.This thesis concludes that Sweden should continue to use tax treaties to challenge international tax planning, and proposes the adoption of Swedish thin capitalisation legislation. The latter should not be in form of an amendment of the present arm's length rule, however. Instead, Article 9.1 of the OECD model treaty should be enactedas a part of domestic Swedish law in place of the present arm's length rule. In addition, this thesis proposes increased taxpayer documentation and information requirements, based on the OECD transfer pricing guidelines.