Kontinuitetsprincipen i den svenska inkomstbeskattningen

Sammanfattning: This dissertation deals with the principle of basis carry-over. The principle of basis carry-over makes possible generation succession and company reorganisations without the accompanying transfers and transactions resulting in taxation for the appreciation of the assets. The basis carry-over means that tax liability is transferred to another tax subject. This occurs because the transferee assumes the transferor’s basis. Thus, taxation is deferred. The transferee is taxed for the entire appreciation upon disposal of the asset. In Sweden, the theoretical foundation for the principle of basis carry-over is unclear. I show that the reason for the application of the principle is the superior goal of achieving effective taxation. This means that a transaction’s capacity to bear tax (i.e. the transaction’s tax elasticity) should have significance for the possibility of using the principle of basis carry-over. Transactions and transfers that occur despite taxation should not be encompassed by the principle of basis carry-over. The problem with the principle of basis carry-over is that the tax subject is changed. This change may be abused. The transferee’s tax situation may result in the assessment of less tax than if the transferor had disposed of the assets in question. It is therefore necessary to precisely regulate the forms for how the principle of basis-carry over may be applied in both generation succession situations and reorganisations. There are other techniques for achieving the same result. One technique is where income for a transfer is calculated but the taxation is deferred (i.e. by allocation to an unrealized intercompany profit account). This prevents exploitation of the transferee’s tax situation in order to reduce tax. It would be desirable therefore if this alternative could be used more frequently in Swedish law. An in-depth analysis of the Swedish legal rules in this area is presented in this dissertation. Generation succession, company formation and other types of reorganisations are scrutinized. The legal rules have developed over a long period of time. The rules are therefore fragmented and different solutions exist for basically the same problems. It is proposed in the dissertation that uniform and concise rules be introduced. This should occur through special legislation.