Delafståelse ved generationsskifte af en landbrugsvirksomhed og samspillet med sælgers virksomhedsordning

Tom Holst

Studenteropgave: Masterafhandlinger

Abstrakt

The dissertation deals with some of the important considerations of a part-sale of a agricultural farm in relation to a generation change. In case of a generation change, the owner still alive, a valuation of the assets transferred need to be made. The assets must be transferred at marked value, regardless of whether the transfer is done with tax-”succession” (succession means: the new owner steps into the former owners tax-situation) or not. The Danish tax authorities have issued a number of guidelines on how to determine the market value for an asset transfer between associated parties. Namely a number of circulars on valuation have been issued. When transferring agricultural business from one generation to the next, the valuation circular anno 1982 is particular relevant.
When transferring within closest family, the recipient assumes the transferor´s liability. This means that the recipient have acquired the tax liability at the same time, cost and intention of the transferor. De- and appregations made by the transferor are also transferred to the recipient. As compensation for assuming the tax liability, a debt (in danish: passivpost) can be created. The debt is used to reduce the the tax of the gift given when transferring to closely related persons. In order for this debt to be relevant the transfer has to include a gift. The guideline regarding such a debt is found in the rules inside Kildeskattelovens § 33 D. Following an order from the national tax court (Landsskatteretten) published in SKM2008.876.LRS a alternative option to compensate for receiving the latent tax liability became evident. The national tax court states that receival of the tax liability is a contingent liability, that has to be valuated according to market price. Indicative guideline and case-law define that it is not possible at the same time to obtain both types of compensation; through reduction of the sales price for deferred tax an through reduction in gift-tax following creation of a debt (passivpost). If the transferor employs the Virksomhedsskatteordning (special danish tax-rules) it is relevant to consider
how the transfer is rectified and which withdrawals (in relation to the Virksomhedsskatteordning) this causes in case of a part-sale. The dissertation documents the challenges of valuation, especially of real estate, when transferring assets between persons with associated interests. The baseline is applicable legislation, indicative guidelines and relevant case-law. The two methods of compensation for receiving deferred taxa re compared in order to assess which is optimal. Furthermore the new ”mortgage-model” (in danish: Pantebrevsmodel) is assessed as well as the necessary considerations regarding the option of succession in combination with the rules concerning index adjustment for agricultural real estate. It is explained which options the transferor has, in purpose helping financing a agricultural farm, without
employing significant withdrawals, in relation to the irksomhedsskatteordning, of the transferor. Also it is investigated whether there is a different between choosing compensation through reduction of deferred tax or reduction in gift-tax in terms of a debt (passivpost). Finally a conclusion and perspectivation is presented.

UddannelserMaster i Skat, (Masteruddannelse) Afsluttende afhandling
SprogDansk
Udgivelsesdato2020
Antal sider56