Retskildeværdien af en vejledende anvisning: Hvem er den bindende for, og hvem har bevisbyrden?

Abstract

This Master Thesis is an analysis of the legal source value of the valuation circular from 1982 and Circular 2000-5, 2000-9 and 2000-10 regarding real estate, goodwill and shares. The focus is on valuation of assets and shares that are transferred between parties with the same interest. The circulars are instructive rules that applies for the employees at the Danish Tax Agency, but there are circumstances that can cause a deviation from the circular rules. Furthermore, there is a difference in the circle of people, that can apply the rules in the four different circulars. There are also different rules between a living person and a deceased, which also is described. After the description of the circulars and their historic development, a comparative analysis is made to
conclude, who can apply the rules, which circumstances causes deviation, and who has the burden of proof when deviation is wanted. The Thesis concludes, that even though the Danish Government tries to make the rules simple and
uncomplicated the case law gives another picture. Especially the special circumstances regarding valuation of real estate are complicated and not very clear. For more than two years a guidance concerning these special circumstances have been in preparation in The Danish Tax Agency but is still not released. Normally the rules in the circulars will be the base line of valuation when assets are transferred between parties with the same interest, but the Danish courts has in several cases denied that the taxpayer has at legal requirement in using the rules even though this has been the case law especially before 2016. It is therefore a recommendation that a binding answer from The Danish Tax Agency is applied for before the transferred is made. This is to eliminate the risk of an unexpected change of the valuation after the transferred is completed. Last it is concluded that the burden of proof to deviate from the circular rules lies on the person, that wishes to valuate in another way.