Successionsoverdragelse af kapitalandele: Med fokus på pengetankreglen

Abstract

In Denmark a normal transfer of shares in a company will cause a capital gains tax of the profit on the shares you sell. By default, the capital gains tax shall be paid even though the transfer of the shares is a gift for example to your relatives or they will inherit it from the estate. The capital gain tax marginal rate of tax in Denmark is 42 percent and shall be payed in the year the shares are transferred from the transferor to the transferee. In the early days it was possible to let the shares be inherited by the heir by succession without the capital gain tax would be triggered. Hereby the heir entered in the testator’s acquisition price. Until 1988 it was only possible to handover the shares to the next generation (children, grandchildren etc.) as an inheritance. From 1988 it was also possible transfer the shares to the next generation before death without the capital gains tax was triggered. The transfer of shares without triggering the tax was possible for all shares both in business entreprises, Real estate companies and investment companys. The possibility of transferring shares by succession was restricted in 1998 for inheritance and in 2000 for the transfer before death. After the restrictions it was only business companies who was covered by the laws for capital gain taxation and Estate tax by succession. The restriction set up a list of requirements which had to be fulfilled before the transferor could
transfer the shares to the transferee without triggering the capital gains tax.
This master thesis will compare the two laws of the five laws which contains the list of requirements. In the taxation of capital gains on sale of shares act and the taxation of estate act the requirements is given for when a company is not defined as an investment capital company or “cash tank”. If the term of one of the laws are of fulfilled, the shares can be transferred without triggering the capital gains tax. This rule is in practice called the “cash tank rule”. First the taxation of capital gains on sale of shares act and the taxation of estate act will be compared through a comparative analysis including interpretation of the wording of the acts. To understand the purpose of the laws there will be a historic review where the development of the taxation of capital gains on sale of shares act and the taxation of estate act. The conclusion of the comparative analysis and historic review is that the laws are similar. The essential part of the laws is regarding the statement of the capital assets and the operating assets on the date for transferring the shares to the transferee or inheir. Therefore, the
condition of the assets will be analyzed with a list that can be used in practice.