2012 European Tax Studies 1 (2012)

handle is hein.journals/eurotaxs4 and id is 1 raw text is: European Tax Studies                                                  1/2012
News and Commentary - Exit Tax: Comparative Analysis in a EU Perspective (n. 1/2009)
New Swedish Emigration Taxes on Business Income
Katia Cejiel
1.     Introduction
The recent European Court of Justice's (ECJ) decision in National Grid Indus
illustrates the Member States' difficulty adopting rules on notional taxes due
upon exit of legal persons, that remain compatible with the fundamental
freedoms2. The purpose of the current article is to assess Swedish rules in the
light of the requirements set by EU law.
Before the National Grid Indus case was rendered, and over the past five years -
nine out of ten Swedish emigration tax rules3 have changed. These changes have
been made based on the assumption that the rules were not in compliance with
EU law. The exit tax rules for companies were the last ones to be changed. Two
of these rules (which came into force on January 1st 2010) will be presented and
commented on in this article, i.e. the withdrawal taxation on business income
and the claw-back on tax allocation reserves (periodization reserves).4 A
description of the rules is presented in Section 3. However, even the new rules
may be questioned to some extent in relation to the freedoms guaranteed in the
TFEU. An analysis regarding this question will be presented in Section 4 below.
Before this is done, a background regarding the Swedish company law is
presented (Section 2.1). The point of departure is taken in the article written by
Professor Emeritus Leif Muten in Studi Tributari Europei 1/2009,5 the so-called
LL.D. Katia Cejie is a researcher at the Faculty of Law, Uppsala University, Sweden.
2 European Court of Justice, 29 November 2011, case C-371/10, National Grid Indus.
3 In this context the term Emigration Tax refers to an income tax rule that is applicable for
individuals or companies transferring tax residence from a State and thereby becomes a resident of
another State. Both exit taxes as well as rules regarding extended income tax liability are
concerned.
4 See Muten, L., 'Exit Taxes in Sweden', Studi Tributari Europei (STE) 1/2009 p. 7-17.
5 See Muten, L., STE 1/2009 p.10 ff. See also Muten, L., 'Advance Rulings Board Issues Decision on
Corporate Emigration', TNI October 9, 2006 p. 113-114 and 'Will Case Law Do?' p. 658-660 in A
@ Copyright Seast - All rights reserved
1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?