Att motverka skatteflykt : En komparativ studie av generella åtgärder mot skatteflykt i Sverige och Danmark i ljuset av skatteflyktsdirektivets allmänna regel mot missbruk

Sammanfattning: This doctoral disseration examines how the structure and function of the European Union’s (EU) newly introduced General Anti-Avoidance Rule (GAAR) affects the concept of tax avoidance in its member states. Through a comparative study of the Swedish and Danish approach to combating corporate tax avoidance, the dissertation focuses on both the pre-existing provisions against tax avoidance and the rules following the implementation of the Anti-Tax Avoidance Directive’s GAAR as established in Article 6. The main contribution of the comparative study is twofold. Firstly, the study aims to contribute to a better understanding of the GAAR’s provisions in general and its fourth requirement in particular, establishing that an arrangement – in order to be ignored – should have defeated the purpose of applicable tax law. Secondly, the study compares how Sweden and Denmark have combatted tax avoidance in the past in order to explain how aforementioned provisions will affect the two countries in the future. Through a comparative study of the implementation of article 6 in two distinctly different –although fully comparable – neighbouring member states, the application of said requirement is discussed in the light of the anti-tax avoidance directive’s aim to establish a minimum level of protection against tax avoidance practices across the EU. Through a systematic literature review and further analysis of the countries’ different strategies for combating tax avoidance, the study shows that general measures against tax avoidance – whether in the form of a GAAR or an interpretive doctrine – are an expression of the legal context in which they operate. Based on the Swedish and Danish examples of how the two countries have implemented the directive’s article 6, I argue that the ambition to establish a level playing field for anti-tax avoidance measures within the single market might be jeopardized by the GAAR’s fourth requirement. By referring to that which in a domestic setting is considered to defeat ‘the object or purpose of applicable tax law’, the common EU-GAAR not only refers to the EU general principle of abuse, but also to domestic concepts regarding legal interpretation, the interplay between private law vis-à-vis tax law, as well as the constitutional and administrative aspects subsequent to the rule of law – adding to the already complex plura of anti-abuse provisions expressed in primary and secondary EU law. The methodological framework of this dissertation is based on a pragmatic contextual perspective accentuating and enabling a thorough analysis of the ‘none-rule’ elements of the compared jurisdictions whilst bridging the countries’ different measures through an overarching comparative function. Despite legal cultures not being an empirically measurable phenomenon, the study’s contextual approach serves not only as an explanatory tool in the comparison of the two Scandinavian countries but serves as a self-standing contribution to further understand the examined countries. In contrast to a sole functionalistic comparison, the study’s contextual approach acknowledges law as a political realm, enabling an evaluation of the profound implications regarding taxation as a branch of public law and recognising the different political priorities, arrangements, and preferences in the countries compared. Through this contextual approach the study scrutinises and compares Sweden’s and Denmark’s different approaches to combating corporate tax avoidance, revealing novel insights to the nature of the EU-GAAR and its implementation. Whilst acknowledging and analysing the ulterior diversity of the two Scandinavian countries, the dissertation presents engaging contemporary insights into the everchanging field of tax avoidance research both within Scandinavia and the EU.

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