Skattefrie omstruktureringer med og uden tilladelse fra SKAT efter vedtagelsen af Forårspakken 2.0

Louise Nielsen & Henriette Bakkegaard Torbensen

Student thesis: Master thesis


The background to this dissertation is the set of objective rules adopted by the Danish Act No. 343 of 18 April 2007 as most recently amended by the Danish Act No. 525 of 12 June 2009. The set of objective rules is an alternative to the rules on tax-free restructurings which are subject to the approval of SKAT, the Danish taxation authorities. This means that companies today have the choice of two parallel sets of rules when it is desired to change the company structure through taxfree restructurings. Thus, the main emphasis of the dissertation will be placed on a description of the choice between the approval system and the set of objective rules. By way of introduction, the dissertation will describe in outline the motives underlying companies' desire to carry out restructurings, including both company law and tax law motives. This will be followed by a description of the company law conditions that apply whether restructurings carried out are taxable or tax-free and subject to or not subject to approval. Furthermore, the dissertation will throw light on the tax implications of restructuring carried out as a taxable transaction because the transaction can be relevant both as an alternative to a tax-free restructuring and in the event of non-performance of either the objective conditions or the antiavoidance rules. The historical development and the background to the set of rules on restructurings subject to approval will be briefly discussed since these parameters form the basis of current legislation in the field. Conditions as well as tax implications for the parties participating in a tax-free restructuring subject to approval will subsequently be discussed in compliance with current practice in the field. In addition, the dissertation will throw light on the set of objective rules which enable companies to carry out tax-free restructurings without obtaining SKAT's approval provided that a number of objective conditions are met. The consequence of approval having not been obtained is that companies and their parties involved become subject to a number of objective conditions as well as anti-avoidance rules, all designed to prevent tax-free restructurings from being carried out for the sole purpose of avoiding or evading tax. This ensures indirectly that the subjective condition under the approval system is complied and that, at the same time, the consumption of resources in connection with restructurings is reduced. The dissertation will carry out an analysis to show which set of rules is preferable in the individual case. The choice will always depend on a specific evaluation, and all parameters of the contemplated restructuring will therefore have to be uncovered before the final choice is made. The discussion will also focus on how the set of objective rules is affected by the passing of the Danish Act No. 525 of 12 June 2009 and explain why, from an overall point of view, the amendment of the Act must be regarded as a simplification, which makes the new rules more useful compared to the original set of objective rules. Lastly, the dissertation will describe transitional provisions for restructurings carried out before the passing of this amendment to the Act.

EducationsMSc in Auditing, (Graduate Programme) Final Thesis
Publication date2010
Number of pages140