Skattefri omstrukturering 2010: Belysning af de skatteretlige forhold ved skattefri aktieombytning og spaltning efter ikrafttræden af skattereformen

Abstract

Over the last 3 years, Tax Laws for restructuring have experienced several changes and supple-ments. In 2007 the Ministry of Tax passed an enactment for Tax-free Restructuring, which in-cluded the opportunity to reorganise companies without preceding permission from the Tax Au-thorities. In the summer 2009 the laws was further changed to lighten protective rules for restruc-turing influenced by harmonisation in the Danish Taxation of profit in shares. To avoid circumvention of the laws for restructuring these includes objectified rules, which shall prevent tax evasion, when preceding permission is no longer a criterion. However, it is still possi-ble to gain permission in cases where the objectified rules are not available due to the restricted regulation. This dissertation analyses and describes the present regulation for reorganisation without permis-sion and the related rules and pitfalls. Subsequently, the analysis results in a guidance and process diagram to advisors usage. The analysis illustrates that the law includes a wide set of rules which shall be considered cautious accordance the pronounced practice since the implementation. Often is pronounced verdicts misinterpretation or direct circumvention of the rules. Due to the restricted rules the system contains a risk of incorrect usage which causes unsuitable taxation of initiated transactions. The present set of rules does not include reversible conditions. Based on practice it is advised to require a binding answer in case of risks for the authorities overrules the transaction. Further; some cases shall be permitted before initiating the transaction. In general, the conclusion is that the purpose of the objective system has been lightened and re-structuring companies can easily be carried out for minor companies without too many complica-tions. For restructuring of companies with many aspects the initiation of the transaction must be considered carefully. The transaction can even be related to tax influenced decisions, which re-quires tax planning at least 3 years ahead, due to the overall objectified rule, which demand 3 years ownership for companies as shareholders.