Avyttring : En studie av det skatterättsliga avyttringsbegreppet vid beskattning av kapitalvinster och -förluster enligt inkomstskattelagen

Sammanfattning: The taxation of capital gains and losses is dependent on the concept of divestment. Only those transactions that fall into the definition of divestments in accordance with §§ 3-10 in chapter 44 of the Income Tax Act are considered taxable events. Since the repealing of inheritance and gift tax in December of 2004, a transaction that falls outside of the concept of divestment is tax free. In shaping the capital income taxation, the principle of tax-paying capacity has been an important argument.The objective of this thesis is to examine and analyze the concept of divestment in regards to the taxation of capital gains and losses. The purpose is to identify (a) what components, or requirements are necessary in order to form at transaction that is a divestment and (b) how those requirements are defined. This purpose requires an inventory of applicable law and practice as well as a study of the context of capital gains taxation.The conclusion of the study is that Legal certainty sets boundaries for the interpretation of the concept of divestment. The taxation should as far as possible be neutral, take into account if the transaction creates an (at least theoretical) ability to pay tax and if possible avoid solutions that create unnecessary lock-in effects. The context in which an assessment problem has occurred, principles of reciprocity, continuity, symmetry and consistency in the tax system should be taken into account when assessing unclear cases. In the assessment of whether there has been a divestment, the transaction should be broken up in pieces and analyzed. The essential questions are:if necessary compensation has been exchanged for the asset (in order for it to not be considered a gift); andif the asset or part of the asset has been definitely divested from the previous owner.The second question can in turn be divided into three issues:if there is ownership of the asset in question;if the essential components of the asset have been changed; andif the owner has disposed of the asset in a definitive manner.A divestment is a transaction by which a person in exchange for sufficient compensation disposes of the rights and obligations associated with a particular asset in such a way that the ownership of the asset expires. A divestment typically requires at least two parties. In an unclear situation the assessment of whether a divestment was made or not must always be based on the motives of capital gains and loss taxation.