Når en objektiv pengetankregel bliver subjektiv

Abstract

his thesis centers around a detailed judicial analysis of the money bin rule in the act on taxation of capital gains on sale of shares article 34, paragraph 1, point 3 and paragraph 6. The purpose of the analysis is to clarify the term passive investment and determine its meaning in relation to the money bin rule.
The change of legislation in 2017 meant that the money bin rule changed from being based on objective rule to a subjective judgement. The list of assets in the law were no longer pre-defined as money bin assets. This means that an active assessment of all assets is required to determine if the company’s assets are in fact considered passive investments. The assessment must consider purpose and intent of an asset rather than the characteristics of the asset class.
Neither the wording of the law nor the preparatory work on the law specifies criteria for determining if assets held can be considered passive investments. Furthermore, it is not specified what criteria should be included in the asset assessment. This causes an unnecessary insecurity when applying the law. Case law gives some indications of what criteria can be used but these are not generic, and they cannot be applied as general rules for all asset classes.
The law provides a list of exemptions. These are assets that should always be considered active investments. This includes domicile properties that are on lease to intragroup companies, and farming and forestry properties that are leased out. Besides this there is a transparency rule on associated companies where ownership is at least 25%. These exemptions were put in place before the judicial changes in 2017, they are however still necessary for assets to be considered active investments.
In addition, the law lacks a formal stand on how ownership of tax-transparent companies should be treated. Danish supreme court decision SKM2023.168.HR stated that there is no total-transparency rule specifically targeted ownership of tax-transparent companies, and that ownership of tax-transparent companies potentially can be considered passive investments.