Om skyddet mot retroaktiv beskattning : En studie i konstitutionell rätt

Sammanfattning: What kind of protection exists concerning retroactive taxation? The purpose of this study is to examine the overall protection against retroactive taxation in Swedish law, including the European Convention on Human Rights and European Union law. Furthermore the study aims to clarify the interpretive aspects of the problem of retroactivity. The methods used are a combination of critical legal positivism and interpretivism.    The protection against retroactive taxation in Swedish law is regulated at the constitutional level in the Instrument of Government, Chapter 2 § 10 sec. 2, which has been in force since 1980. The protection is not absolute as there are two exceptions. The first exception is used regularly and allows for a special legislative procedure where the government, through a written communication to the parliament, issues an authoritative forewarning that a retroactive change in the tax law is to be expected. This has created a system of “prospective retroactivity”, where taxpayers are able to foresee, to a certain degree, the situations to which the written communication procedure will apply. The second exception regards the use of retroactive tax legislation in times of war or severe economic crisis, but has never been used. This constitutional provision provides for a rigorous protection against retroactive taxation, but is limited in scope. It only concerns legislative acts by the parliament and the government and the protection mainly concerns retroactivity, not retrospectivity. The Swedish model as a whole appears to be compatible with the human rights protection laid down in the European Convention of Human Rights as well as European Union law.    Nevertheless, an active principle-based protection in other areas outside the scope of the constitutional provision seems desirable in order to achieve a more effective protection against retroactive taxation throughout the whole legal system.    The study suggests that the concept of retroactivity is an interpretive concept and that the foremost solution to problems of retroactivity is through the balancing of supporting and competing principles or policies. The dichotomy of retroactive and retrospective, that is commonly referred to in legal practice is thus rejected, since it cannot provide for an assessment of what is at stake for the individual.    A model for the interpretation of the protection against retroactive taxation based on the principle of proportionality is presented in the study. The principle of proportionality is at the forefront in this respect with its different aspects; legitimacy, necessity, suitability and proportionality stricto sensu. The principle of human dignity is proposed as being decisive regarding the legitimacy of a retroactive interference. Delimiting principles such as the principle of necessity and the principle of the abuse of law are also discussed as a means of justifying retroactive interference. The model has been developed according to the results of a study of the overall protection against retroactive taxation, especially the case law of the European Court of Human Rights and the Court of Justice of the European Union as well as interpretivist theories.    The study also discusses the need for clear strategies for the legislator as well as the courts and the tax authorities on how to avoid retroactivity and achieve reasonable transitions, and includes various proposals in this regard.

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