CFC-beskatning: Anden indkomst fra immaterielle aktiver og partiel substanstest

Michelle Sørensen

Studenteropgave: Kandidatafhandlinger


On 3 June 2021, the Danish CFC rules were changed by Lov nr. 1180 of 08-06-2021. This included, among other things, an extension of the CFC-income definition to include income from intellectual property and a partial substance test was introduced in Danish applicable law. The change of the Danish law is based on the Anti-Tax Avoidance Directive's minimum requirements within, among other things, the CFC area, which aims to ensure more uniformity among the Member States' national legislation. The purpose of the Directive is to prevent international tax avoidance, which the minimum requirements ensure, by ensuring that companies that benefit from the internal market where they generate profits, pay tax on the profits within the EU, where the income is generated. This thesis investigates the interpretation of Article 7 of the Directive which addresses the conditions of the CFC area. This thesis investigates the extension of the CFC income definition to include income from intellectual property. The thesis finds that this extension of the CFC income definition in Danish law is expected to present challenges for companies, as sufficient guidelines have not been provided by either the national or international authorities. This thesis furthermore investigates the partial substance test that has been introduced into Danish law by Lov nr. 1180 of 08-06-2021, with a focus on what the partial substance test entails and which meaning it has on Danish law. The thesis finds that the partial substance test is interpreted in accordance with the EU law concept of abuse, which includes artificial arrangements without any economic or commercial justification. In addition, the European Court of Justice has provided further guidance on what constitutes an artificial arrangement in recent cases. Furthermore, the thesis investigates the differences and similarities between Article 7 of the Anti-Tax Avoidance Directive and Selskabsskattelovens § 32 after passing Lov nr. 1180 of 08-06-2021. The thesis finds that in Danish law there are some differences in relation to the Anti-Tax Avoidance Directive which are necessary to secure the Danish tax base. This ends up in an assessment of the Ministry of Taxation's arguments for necessity. The thesis finds that it has been necessary to deviate from the Anti-Tax Avoidance Directive and that other countries have also modified the minimum requirements when implemented these into their national law. Finally, the loss proposed by the Danish Ministry of Taxation means it will cost the Danish state if a substantial exemption of all CFC income was introduced as well as the estimated resource consumption for the tax administration after the implementation of Lov nr. 1180 of 08-06-2021 is discussed. The thesis also finds that the partial substance test rather than the Directive's substance exemption is a necessity to secure the Danish tax base and that its interpretation is in accordance with the EU law concept of abuse. Furthermore, the thesis finds that the estimated resource consumption seems underestimated compared with the Danish Tax Administration's total budget from the Danish Finance Act.

UddannelserCand.merc.aud Regnskab og Revision, (Kandidatuddannelse) Afsluttende afhandling
Antal sider80
VejlederePeter Koerver Schmidt