Kapitalejerlån: Selskabs- og skatteretligt

Louise Ellen Curtis & Sarah Bach Mortensen

Student thesis: Master thesis


Executive summary: The purpose of this thesis is to create an overview on how shareholder loans are handled in the Danish Companies Act and the Danish Tax Act including the differences between the two Acts. We will also analyze whether or not the Tax Act is compatible with the EU legislation. Furthermore we will examine and analyze the challenges that the auditors and shareholders face, when dealing with shareholder loans. The thesis will start with a review of the rules in the Danish Companies Act concerning shareholder loans. After this there will be a review of the previous and current Danish Tax Act concerning shareholder loans. LL § 16E includes loans from both Danish and foreign companies to Danish shareholders, who are tax liable to Denmark. Therefore we have chosen to examine whether LL § 16E is in harmony with the rules in EU. We have assessed that LL § 16E is a restriction as regards to article 49 TEUF, as LL § 16E makes it less attractive for Danish shareholders to establish a limited liability company in e.g. England due to the taxation of the shareholder loans. There are some general criteria for a restriction to be justified; these are mentioned in C-55/94 Gebhard. We do not think that LL § 16E comply with these criteria and there by the restriction cannot be justified. In the thesis, we have set up a set of examples, to bring light to the challenges the two Acts bring as a result of their differences. Doing this, we realized that there are two major challenges. The first is the possible double taxation as a result of the fact that the shareholder is taxed on the loan AND have to pay it back to the company. The other challenge regarding LL § 16E is loans from a limited liability company to a partnership, limited partnership or limited partnership company, where the shareholder is also a shareholder in the limited liability company. According to the Danish Tax Authorities they will look through the different partnerships because they are fiscally transparent. We do not agree with the Danish Tax Authorities, we do not believe that the fiscal transparency can justify that you look through the partnership. The partnerships are legal entities that can own assets and raise loans. We believe that it is wrong to impose tax on a shareholder for a loan that the partnerships have raised. The auditor also faces some challenges, as an illegal shareholder loan will mean that the auditor’s statement will have to be modified. Furthermore, the Danish Tax authorities have opened for the possibility that once a shareholder loan is given it can be fixed, if the requirements in The Danish Company Law regarding this matter are met. This can be difficult for a shareholder and he will often need the assistance from an auditor. It will be interesting to follow the development of LL § 16E in the future, to see if there will be made any changes.

EducationsMSc in Auditing, (Graduate Programme) Final Thesis
Publication date2015
Number of pages114