Kapitalejerlån

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Kapitalejerlån

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Title: Kapitalejerlån
Author: Hajsen, Josef
Abstract: In the last years, there has been significant debate that shareholder loans are dangerous to company creditors due to the fact that they cannot protect themselves from loss, and the government cannot protect itself from lost tax revenue. Therefore, it has been argued that the reinstatement of mandatory auditing for small companies would potentially solve this problem. The purpose of this thesis is to investigate whether the reinstatement of mandatory auditing for small companies can, in fact, solve the problem. This is done by identifying the official and real objectives of the rules regarding shareholder loans in SL § 210 and LL § 16. This thesis will, by identifying which concerns the laws were introduced with, analyse whether these considerations can be handled by reintroducing the mandatory statutory audit. In 2016 shareholder loans were legalised with L 23 if the shareholder loans are granted on the basis of the company’s free funds and on market terms. By following these conditions, the considerations of the company’s creditor protection and the government’s tax evasion are properly handled. In addition, in 2012, LL § 16 E was introduced with the purpose to reduce the tax evasion by double taxing the shareholder loans. To answer the research question, the thesis draws on Swedish and Norwegian law, which have introduced different rules regarding shareholder loans but with a similar object. These analyses confirm that shareholder loans granted by the cf. SL § 210 are handling the consideration regarding the company’s creditor and tax evasion. The objectives of SL 210 and LL 16 E have been further analysed. It has been concluded that the objective of SL § 210 is the real objective, since the consideration of the company’s creditors has been handled by SL § 210. The objective of LL 16 E has been assessed as not being the real objective because there are no tax benefits on loans granted on market conditions. The real objective of LL § 16 E has been concluded as a penalty in the form of double taxation. This is reasoned, among other things, by the fact that there are no tax advantages of loans on market terms, and if loans that were not granted on market terms were to have tax advantages, LL § 2 has already performed this objective. The thesis has, on the basis of the real objectives, examined which considerations a reinstatement of the mandatory audit would take. Due to the fact that the consideration of the company’s creditor protection is handled in accordance with SL § 210, it is not beneficial that the auditor verifies the considerations because of this objective. If the auditor is to verify LL § 16 E, regarding tax evasion, the verification will be based on a non-valid objective. The government’s tax deficit that arises in the case of a shareholder loan takes place on the basis of a penalty tax in the form of double taxation. Therefore, the reinstatement of the statutory audit for all companies cannot result in the objectives of the SL § 210 or LL § 16 E being achieved. In relation to other areas which this thesis could have investigated, it would be interesting to investigate whether it is possible to seek out illegal shareholder loans by using machine learning. Non-audited annual reports do not have an additional disclosure of illegal shareholder loans, which is why it could be relevant to investigate the possibility of removing the illegal shareholder loans without the need to reinstate the mandatory audit for all companies.
URI: http://hdl.handle.net/10417/6329
Date: 2019-07-24
Pages: 68 s.
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