Taxation of board fees
The role of a board member in a company is personal and can only be exercised by a natural person. Fees for such roles are therefore, according to previous practice, usually taxed as earned income. The question is whether the change in the definition of business activity that applies from 2009 affects the taxation of board fees.
The case
A person served as a member on the boards of around thirty companies and declared the board fees as income in the employment income bracket. He planned to perform nine of the assignments as a consultant through his wholly owned limited company. Eight of the assignments relate to companies in which he has a direct or indirect ownership interest.
The man applied for a preliminary ruling and wanted an answer to the question of whether the board positions he intended to invoice through his wholly-owned limited company would be taxed as income from employment or within the company.
The Swedish Tax Agency was of the opinion that the board fees should be taxed as income from employment because they were attributable to companies in which the man was a shareholder. The Council on Business Taxation, SRN, also was of the opinion that the compensation for the board assignments should be taxed as income from employment. The SRN maintained that the legislative amendment from 2009 had not brought about any change in the view of the personal nature of board assignments. We have written about the advance ruling in Service 2/2017.
Three members were, however, of a different opinion and believed that the compensation should be viewed as income from an independently conducted business activity. The dissenting members believed that the fact that the man directly or indirectly owned shares in the client companies did not warrant any other assessment.
Supreme Administrative Court
The Supreme Administrative Court (HFD) highlights that the purpose of the 2009 legislative amendment was to broaden the definition of commercial activity so that more people could be assigned F-tax status and run businesses. The intention was to reduce the significance of the number of clients and instead focus on the relationship between the parties and their common intention when assessing whether the invoicing company is independent of the client.
Circumstances that should be particularly considered when assessing whether an activity is operated independently are what has been agreed with the client, the extent to which the contractor is dependent on the client, and the extent to which the contractor is integrated into the client's operations.
The provision therefore, according to the Supreme Administrative Court, targets circumstances other than those that have governed previous practice regarding the taxation of board fees, i.e. the personal nature of the board appointment. The legislative amendment from 2009 can thus, according to the Supreme Administrative Court, not be considered to have brought about any change in the legal situation concerning the taxation of board fees.
Since the current board assignments are not temporary and specifically defined assignments that allow the fees to be taxed in the company, the HFD, like the SRN, finds that the fees should be taxed as income from employment. This applies even if only a portion of the fees is invoiced from the company.
Commentary
The expansion of the definition of business activity that was made in 2009 has therefore, according to the HFD (Supreme Administrative Court), not resulted in any change in the legal situation regarding the taxation of board fees. Even if the assignments are invoiced by a company, they shall be taxed as income from employment, as they are personal assignments that can only be held by a natural person. According to the HFD, it does not seem to matter whether the board member has any ownership interest in the client or not.
Fees paid to a company for assignments of limited duration and specific contributions to another company could, according to previous practice, be taxed in the invoicing company, RA 1993 ref. 55.
In a statement, dnr 131 751308-08/111, the Swedish Tax Agency has held that individuals with at least three directorships can invoice these through their own company, provided that the directorships are not attributable to their own or a related company. The Swedish Tax Agency is now expected to change its statement.
Source: Wolters Kluwer – Tax Information
