Internprissättning och omkarakterisering : En studie av möjligheten att omkarakterisera gränsöverskridande transaktioner vid inkomstbeskattningen
Abstract: The purpose of the compilation thesis has been to compare the ability to recharacterize cross-border transactions under the OECD Transfer Pricing Guidelines, 2010 version (OECD Guidelines), and OECDs new guidance from the BEPS project 2015 (Final Report) with the possibility to reclassify legal transactions in accordance with Swedish domestic law. The latter is an interpretation of the Swedish Supreme Administrative Court’s (SAC) case law on the taxation of transactions based of their true import. The aim has also been to examine if the possibility to recharacterize cross-border transactions under the OECD Guidelines and Final Report is limited by domestic law, i.e. SAC’s case law or the Correction Rule when the Correction Rule is to be applied. The Correction Rule is the Swedish domestic arm’s length principle rule. A central methodological question is the value of OECD’s guidance as a legal source when the correction rule and tax treaties are to be applied, considering e.g. the principle of legality and the Vienna treaty convention and the fact that Sweden is a dualistic State, meaning that implementation of tax treaties into Swedish law by the Swedish congress is required.The conclusion is that the OECD’s guidance regarding recharacterization goes beyond the possibility provided for under domestic law. The OECD guidance regarding recharacterization adds something new other than what follows from the Correction Rule. To recharacterize transactions in accordance with OECDs non-binding guidelines, i.e. based on economic substance or that the transaction is irrational, goes according to the study beyond the scope of reasonable interpretations of the Correction Rule. This does not mean that transactions cannot be recharacterized under current Swedish law, but it means that the OECD guidance on recharacterization cannot be used. The legal option available to recharacterize transactions when the Correction Rule is tested is the corresponding review of taxation on the basis of transactions true import made under SAC’s case law. The practices and methodical review to be applied is that for Case law when civil law classification has been crucial in taxation and Economic concepts that do not find any determination in legal rules. Tax treaties cannot extend taxation by recharacterization in the situation that this cannot be done under Swedish domestic law or in the situation that there are no clear answers in domestic law.The study also presents comments de lege ferenda regarding the appropriateness of allowing the OECD guidance on recharacterization to form the basis for new legislation in Sweden and the need to review the Correction Rule. It also asks the question if the new guidance is compatible with the arm’s length principle in Article 9 in the OECD Model Convention. Finally, the study also comments the need for OECD to analyze the effects for companies and authorities that transactions, although properly labelled with contract and civil law, they can be recharacterized due to OECDs far reaching new guidance.
CLICK HERE TO DOWNLOAD THE WHOLE DISSERTATION. (in PDF format)