Lempelse og overførelse af underskud ved anvendelse af virksomhedsordningen

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Lempelse og overførelse af underskud ved anvendelse af virksomhedsordningen

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Title: Lempelse og overførelse af underskud ved anvendelse af virksomhedsordningen
Author: Sandager Hansen, Eva
Abstract: When calculating whether there is a tax loss that can be transferred to one's spouse, the personal income taxed abroad is disregarded in personskattelovens § 13, stk. 5. It was stated for the first time in the annual report for 2017 that, with the addition of the company scheme, only the part of the foreign income, that could be accommodated in the overall positive result of one's companies, was left out of account. SKAT has inserted a new section in the judicial instruction of 2016, and explains the change with the following statement : ”It is SKAT's opinion, that the total tax result of all companies under the scheme must be positive, before ignoring positive foreign income according to PLS § 13 stk. 5. Look at SKM2015.648.LSR”. ”Det er SKATs opfattelse, at det samlede skattemæssige resultat af alle virksomheder under ordningen skal være positivt, når der skal bortses for positiv udenlandsk indkomst efter PSL § 13, stk. 5. Se SKM2015.648.LSR”103. In this paper I have examined whether SKAT is right about their perception of the valid law. I have examined this by the use of judicial methods. Can the settlement of deduction from taxes be used analogically on the ”leave out of account/bortseelses”-rule in personskattelovens § 13, stk. 5? I have looked further upon the law itself about deduction from taxes, and can conclude that it is judicially correct, according to national rules. Hereafter, it can be said that the actual double taxation is not incompatible with the double taxation agreement and OECD’s Model Tax Convention, and that EU also allows double taxation as a result of the Member States’ sovereign taxation, as long as no discrimination is found. The interaction between the rules of deduction from taxes and the rule that multiple companies should be treated as one company, if the company scheme is applied, however, results in that the favourable rules in the company scheme cannot really be used by fully taxable persons with business abroad combined with deficits. This differential treatment is considered to be a restriction (discrimination), which cannot be justified by overriding reasons of public interest, and is therefore contrary to the provisions of the EUFagreement on freedom of movement and freedom of establishment. The fact that the judgement is applied as a reason for minimizing the deficiency after personskattelovens § 13, stk. 5 complicates it even further. According to personskattelovens § 13, stk. 5, the income that have been taxed in foreign countries, and not in Denmark, are being left out of account in the ”annual report/indkomstopgørelse”. The words ”not in this country/ikke her i landet” should specially be noted. When SKAT chooses to minimize the disregard with a negative Danish income, it is directly runs counter to the law’s wording, and must therefore demand a clear warrant. There does not seem to exist a clear warrant in another law, nor in virksomhedsskattelovens § 2, stk. 3” or in its processor. It is then considered to be proved that it is also contrary to current law that SKAT limits the carry-over of losses according to personskattelovens § 13, stk. 5, by the option of the company scheme.
URI: http://hdl.handle.net/10417/6325
Date: 2019-07-04
Pages: 53 s.
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