National sambeskatning: Skattemæssig behandling af underskud i koncerner

Abstract

The purpose of the final project has been to examine the tax law rules within national joint taxation, and which challenges a company must be aware of with focus on processing and using tax loss in a group.
The project will describe, analyze and systematize the applicable law within national joint taxation with a focus on the treatment of tax loss, and is thus prepared according to the legal dogmatic method. The project will contain examples of the entry and exit of companies by purchase and sale, merger, and bankruptcy in a group, as well as possible forfeiture of tax losses.
The analysis of the final project is based on the provisions of the Corporation Tax Act on national joint taxation, specifically SEL § 31. Derivation of applicable law starts with a literal interpretation of the written legal text. Next, interpretation of purpose is included through analysis of legal proceedings that have taken place, as well as analysis work on the confirmation of practice.
When a company, in a group, receives a tax loss to be carried forward, it is possible to use this loss in the group and thereby reduce the taxable income of the other group-affiliated companies. There are several types of tax losses, and these are treated differently, cf. SKAT's sequence for using tax losses. The specific order for using these tax losses states that special losses must be used first and then own losses arising under joint taxation are used. When the group's taxable income has been calculated, the remaining unused tax losses are carried forward in the respective companies.
The tax related challenges of using tax losses in different circumstances means that a group must be aware of their actions and decisions, as this can mean forfeiture of tax losses at group level.
The perspectivation of the final project regards international joint taxation. It could have been interesting to draw parallels from the rules in national joint taxation to international joint taxation. In 2021 there were just over 15,000 subsidiaries abroad, which based on this are subject to international joint taxation. The number of foreign subsidiaries has been increasing since 2012 and there is a high probability that this trend will continue in the future. We therefore believe that it will be interesting to examine how the rules regarding the use of tax losses from subsidiaries abroad will have an effect on the group in Denmark.