What are the Consequences of Legislative Amendment No 684 of June 8 2017

Abstract

The popularity of the company structure, limited partnership, has increased over the recent years in Denmark1 . This corporate structure is fiscally transparent and the income from the company “flows through” to the owners, according to their share in the company. Danish case law regarding fiscally transparent firms had previously established that even a small share in such a company, qualifies the owner as self-employed. Danish tax authorities saw it as a problem that partners with limited financial risk and control were able to access the tax advantages in relation to this qualification. Consequently the government implemented the amendment law no. 684 on June the 8th 2017 by inserting § 4 into the Danish Tax Assessment Act (Ligningsloven), stating that being a shareholder in a tax transparent entity, is not itself enough to be qualified as self-employed. The statement is negatively delimited, thus several questions arise. The thesis describes the theory and legal basis behind fiscally transparent entities and how they are taxed. The qualifications employee and self-employed are defined by means of relevant interpretation contributions and legal literature. Analysis of the current legal environment is made and brought into context by constructing a fictional case. The case is analysed, incorporating the recent tax adjudications, by describing how the amendment might change the owner of a fiscally transparent company’s tax qualification from self-employed to employee and what the tax consequences are. The result is that the owner’s income becomes taxed as salary, which is subdivided into salary and return on investment. However the owner retains the right to deduct the commercial interest. This fact mixes the juridical definitions of employee and self-employed. The new law is assessed critically, the challenges are discussed and the expediency of the law is considered, as to establish whether the government achieves the desired outcome. The thesis concludes that the government identified a potential problem and wanted to intervene which in itself is not a problem. But the execution of the solution leaves more questions than answers and blurs the juridical qualifications of the previously separate qualifications employee and self-employed. The law itself and its comments lack tangible and precise definitions.