Omkostninger til forskning og udviklingsaktivitet: Analyse af skattemæssig afgrænsning af forskning- og udviklingsvirksomhed efter ligningslovens § 8 B

Abstract

The advancement of technology and scientific progression are increasingly affecting the entirety of the modern world. It has experienced an exponential boom and are still evolving faster than ever before. In 1973 Danish legislators made it possible to deduct R&D costs incurred from the taxable income through the Tax Assessment Act § 8 B. In 2011, Danish legislators introduced the Tax Assessment Act § 8 X, the tax credit scheme, which allowed companies with taxable losses to have the tax value of R&D costs incurred paid out. In 2018, Danish legislators introduced an update to the Tax Assessment Act § 8 B, increasing the deduction rate gradually to 110% by 2026 and in light of the COVID-19 crisis there was an additional increase in the deduction rate up to 130% in the years from 2020 to 2022, the so-called “super deduction”. The many recent updates to the Danish tax treatment of R&D costs shows the political interest in not only maintaining the level of research and development, but to increase spending and attract further foreign investments in order to accelerate it. The purpose of this thesis is to explore and examine the contents of the Tax Assessment Act § 8 B, in order to assess the requirements and conditions upon which the R&D costs incurred are deductible in the taxable income. The examination will be conducted through analysis of the relevant legal texts, draft laws, circular letters and case law in order to assess and describe the legal landscape. The thesis has found the Tax Assessment Act § 8 B are independent and autonomous in scope and therefore not limited or restricted by the general tax deduction rules for operating expenses in accordance to the Act on Taxation of Income and Property § 6 A. Furthermore, the thesis has found while the international guidance from OECD’s Frascati-manual has inspired the Danish legislators and certain parallels can be found, it has no legal basis in regard to the Tax Assessment Act § 8 B. Further, the thesis analyzes and treats the definition of research and development costs and has found that due to an unclear definition and insufficient guidance on the term, the Danish National Tax Tribunal has passed conflicting verdicts. This leads to legal uncertainty for the entities for which the bur- den of proof lies to in terms of documenting that the expenses are deductible according to the conditions in § 8 B in the Tax Assessment Act. In the conclusion it is found that research and development costs are deductible if they apply under the guidance from the Danish Legal Guidance and according to the definition from the draft law for § 8 B in the Tax Assessment Act from 1973