Skattepliktiga överlåtelser i inkomstslaget kapital

Sammanfattning: Capital gains and losses are taxed under the Income Tax Act (ITA) and occur when an asset is divested. The concept of divestment, which is regulated in §§ 3-10 in chapter 44 of the ITA, creates the scope of taxable events. Only those transactions that fall into the definition of divestments in accordance with §§ 3-10 in chapter 44 of the ITA are considered taxable events. Gifts, inheritance etc. are not considered divestments and are accordingly not taxed under the ITA.The objective of this doctoral project 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 study shows that an divestment is an act through which the former owner disposes of the asset in a definitive manner while directly or indirectly receiving sufficient compensation. The definitive disposal is characterized by that the rights and obligations associated with a particular asset are suspended in such a way that the ownership of the asset expires. This can occur if the asset is modified in such a way that the characteristic components of the asset are changed. If that happens the old asset is considered to have been exchanged for the new one. A divestment typically requires at least two parties.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 into segments and analyzed. 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.