Skattepligt ved kortvarigt ophold på grund af ferie eller lignende

Abstract

Using the legal dogmatic method, the purpose of this thesis is to establish when the tax liability enters according to the withholding tax (Kildeskatteloven/KSL) section 7 subsection 1 and KSL section 1 subsection 1 no. 2. The focus of the thesis is how the phrase “vacation or similar” should be interpreted in the two sections. Kildeskatteloven was introduced in 1967, but the basic structure for unlimited tax was introduced in 1903 by Statsskatteloven. Over the years, politicians have sought to tighten the rules to avoid tax evasion. Based on the analysis of vacation or similar in KSL section 7 subsection 1, in combination with KSL section 1 subsection 1 number 1, both the criteria of residence and the duration of the stay must be incorporated. Based on an analysis of legal practice, it is not possible to conclude exactly when the tax liability sets in because of occupational activities during short stays. The tax liability sets in if the occupational activity is a continuous and regular exercise of a gainful activity and if the only reason for the stay is occupational activity or the occupational activity is characterized by pre-computability. The tax liability will not set in if the occupational activity is isolated and if it represents a small share of employment in the home country. Based on a judgment, SKAT has released a control signal (styresignal). The control signal sets a guideline for how much a person can work during a stay in Denmark. The analysis shows that the guidelines in the control signal do not appear clear, but the guidelines are based on practices which existed already. The Styresignal gives permission to work during stay in Denmark. KSL section 1 subsection 1 No. 2 is inverted of KSL section 7 subsection 1, as it applies to persons staying in Denmark without a residence, but travels on “vacation or similar” abroad. Based on the legal practice of this rule, the thesis shows that the occupational activity plays a major role, like it did in KSL section 7 subsection 1. If a taxpayer starts working abroad during his “vacation or similar”, it immediately interrupts his stay in Denmark and the person is no longer taxable to Denmark. Similarly, it cannot be considered as “vacation or similar”, but as a frequent interruption of the stay, if the person in every weekend and vacation travels abroad. If the taxpayer travels on “vacation or similar” to sort out practical tasks, this falls under the term “similar”. The deciding factor in whether several short stays abroad can be characterized as “vacation or similar”, is whether the stays abroad are “frequent”.