Betydningen og konsekvenserne af aktieavancebeskatningslovens § 4 A, stk. 3: En analyse af værnsreglen mod ”omvendte juletræer”

Abstract

The objective of this thesis is to analyse the protection rule in The Danish Capital Gains Tax Act § 4 A, paragraph. 3, and its consequences for intermediate holding company and its shareholders. The Danish Parliament enacted the L202 bill on 28 May 2009 and amendments entered into force on 12 June 2009. After the previous Danish Capital Gains Tax Act companies could receive tax‐exempt dividends from companies where the shareholding was at least 10 %. In addition the shares could be disposed tax‐exempt. With the enactment of Act No. 525 was the concepts subsidiary‐, Group Company‐ and portfolio shares introduced. Dividends and capital gains from the subsidiaries and group company shares are always tax exempted, while portfolio shares are taxable. This thesis analyses the conditions of the Danish Capital Gains Tax Act § 4 A, paragraph. 3. The protection rule has four conditions all which must be meet to qualify. The analysis concluded that several of the conditions are very subjective and therefore difficult to conclude whether they are covered or not. The condition about ownership is hard to comprehend if just company structures are somewhat complicated, since both direct and indirect ownership must be included. The analysis shows that the protection rule usually leads to more significant consequences when a company structure is included. The operating company must know all ultimate shareholders of the company structure. Tax‐exempt shareholders could risk paying profits tax for company shareholders affected by the protection rule. Company shareholders risks being affected by the protection rule solely on the basis of other shareholders' transactions, which we find very unfortunate. We think that indirect effects are a very unfortunate addition to the Danish tax law. The analysis also assists to make it plausible for the management and its adviser regarding the issues requiring special attention prospectively. The problems regards when establishing a new company structure and when restructuring of a current. Furthermore we have developed a decision tree that can assist solving the problems. The analysis finally concludes that the enactment of Act No. 525 has brought significant complicated rules; which according to our assessment requires clarification and corrections from the Tax Minister by a new bill.