Kapitalejerlån i selskabsretligt og skatteretligt regi: Med perspektivering til norsk ret

Abstrakt

Shareholder loans have been illegal in Denmark since 1982 and Illegal shareholder loans have in a wide range been used to finance privatized consumerism for the majority shareholder, without the intension of ever repaying. Lack of sanctions and legislation meant that shareholders were able to withdraw fonds from a company they controlled, without a proper situation for dividend payouts were present or taxation of the disposition were happening.
A peak in new loans granted and uphold in 2006 and onwards, let to the implementation of more severe sanctions in the Danish tax law in 2012. Loans are now taxed as either dividend payouts or wages, even though a requirement for repayment still exist for the shareholder in every other aspect. This taxation only affects the majority shareholder, but the numbers of shareholder loans have dropped considerably in this short span of time.
The Danish legislation for shareholder loans has changed dramatically with the introduction of conditionalized legalization as of January 1. 2017. This legalization only affected the Danish corporate law, and shareholder loans are still a subject of a heavy taxation, even though necessary actions are taken by the board of directors to ensure the protection of creditors interest. The current legal situation on this subject is confusing and is not compatible with the intensions of the lawmakers who wanted for Danish companies to have more control over their financial decisions and flexibility.
The aim of this thesis is to analyze the interactions between the corporate conditionalized legalization of shareholder loan, and the continued taxation of these loans. This thesis will make a comparison to Norwegian corporate and tax laws concerning shareholder loans, are much more consistence with each other than the Danish, and offers simple opportunities for shareholder loans.
This thesis will analyze the Norwegian principles that allows them to uphold the legalization of shareholder loans, without creditors suffering losses, to present qualified suggestions to combat the lack of coherence between the Danish legislations.