Kapitalejerlån: Sammenspillet mellem SL § 210 og LL § 16 E

Abstract

The purpose of this master's thesis is to present, analyze and assess the interactions between Danish corporate law and Danish tax law regarding shareholder loans. lt is the intention of this thesis to conclude with a solution-oriented presentation of whether the identified gaps can either be eliminated or at least, reduced. ln order to achieve the stated objectives, we reviewed common legal methodologies and practicesin Denmark as well as law applied in the United Kingdom and conducted an interview of a professional in the field of Danish tax law.
Shareholder loans have historically been the subject of changing political positions which has led to numerous discussions of legal proceedings in the field of corporate law and taxation. with effect January 1't 2017, shareholder loans have been subject to corporate law as amended by the Danish Companies Act 5 210. Under applicable law, shareholders and other actors with vested interests may obtain loans, receive collateral or otherwise obtain available funds in compliance with the terms of S 210, 2 of the Danish Company Law. The legal basis for taxation has historically not been directly described in tax legislation, however in 2012 the legal basis was introduced into the Danish Tax Assessment Act 5 16 E. A shareholder who obtains a loan and at the same time has a controlling interest In the company, will as a rule, be liable for taxes as either dividend or salary, as the withdrawal cannot be classified as a loan for tax purposes.
The two sets of rules have shown contradictory provisions which can lead to unintended consequences. This maste/s thesis identified gaps including discrepancies in the comprehensive deflnition and
interpretation of shareholders and other actors wlth vested interests and the concept of accepted business dispositions. ln addition, the Danish tax law does not distinguish between legal and illegal shareholder loans, as well as the issue of double taxation should be addressed.
The final recommendation presented in this master's thesls suggests changes to the Danish Tax Assessment Act S 16 E, incorporating a broader definition of shareholders and other actors with vested interests, full elimination of the double taxation issue, reference to the Danish Companies Act 5 210 for a better distinction between legal and illegal shareholder loans and implementation of penalties for breach of tax law.
The proposal is to change the wording of current Danish Tax Assessment Act 5 16 E which would improve the level of interaction and eliminate the identified gaps, creating a better symmetry between the Danish Companies Act 5 210 and the Danish Tax Assessment Act 5 16 E.