Beskatning af ulovlige kapitallån: Analyse af konsekvenserne ved beskatning

Abstract

In connection with the tax reform in 2012, the rules on illegal shareholder loans were tightened; the raising of a loan from a company by a shareholder of that company remains prohibited under company law. The introduction of section 16 E of the Danish Tax Assessment Act enables the legislator to tax such shareholder loans at the time of payment; accordingly, for tax law purposes, a shareholder loan is therefore regarded as a withdrawal without obligation to repay, and it will therefore be taxable to the shareholder as either dividend or salary. The purpose of this is to achieve greater compliance to avoid that a shareholder exercising control is able to decide at its own discretion to disguise salary or dividend by means of a shareholder loan. Moreover, the new taxation at the time of payment of shareholder loans is regarded as an attempt to rectify the inadequate enforcement of tax law prohibitions and sanctions. The legislator is preparing the ground for a strict legal practice in the area based on the few binding advance rulings obtained to date. To shareholders, the new taxation rules imply that the incentive to repay is reduced as the amount has already been taxed, and the tax is not refunded upon repayment. There is a risk of triple taxation upon loans to the shareholders’ related parties and too early withdrawal of dividend by the shareholder. The shareholder cannot deduct the interest on the shareholder loan which must continue to be treated under tax law rules, whereas the interest will still be taxable to the company. To companies, the new taxation rules imply that the company risks being fined for not withholding and reporting A tax and dividend tax, and these fines have even been raised. To creditors, the new rules imply that they are more poorly protected due to the shareholder’s reduced incentive to repay the loan. The Danish government expects additional annual revenues of DKK 160 million from the new taxation rules. This does, however, seem optimistic and uncertain as the legislator has not taken into account shareholder loans which are actual loans and ordinary balances or the fact that some companies will exercise their right to opt out of the audit obligation. Moreover, the legislator virtually does not allow for any increased expenses, which indicates that increased control measures and an increasing number of court cases have not been taken into account. All things considered, it seems to be a very comprehensive and confusing attempt at getting rid of company law offences by introducing tax law provisions. One might wonder why an attempt has not been made, initially, to try to enforce the company law prohibitions and sanctions, which might have been simplified by requiring boxes to be ticked off in company tax returns or in connection with digital filing. In connection with the introduction of the new provision, it is open to discussion whether the provision is contrary to EU law and would pass scrutiny at the European Court of Justice.