Shareholder contributions can be taxed

Introduction

Shareholder contributions made by waiving or converting a receivable into equity may result in taxable income for the recipient according to a new court case. A special investigation should therefore be carried out when a shareholder contribution is made without direct cash payment.

As a fundamental principle, a shareholder contribution does not constitute taxable income for the recipient, regardless of whether the contribution is made in cash or by other means, such as the full or partial write-off of a receivable. However, the Tax Law Board has, in an attention-grabbing decision earlier this year, concluded that a shareholder contribution in the form of a waiver of a receivable constitutes a tax-exempt contribution only to the extent that the receivable's market value corresponds to the receivable's nominal amount, the amount lent. If the nominal amount of the contributed receivable exceeds the receivable's market value, the excess amount constitutes taxable income for the debtor.

The circumstances of the case were that a foreign parent company had, over time, provided shareholder loans to its wholly-owned Swedish subsidiary, which in turn constituted the parent company of the Swedish part of the group. Further, it was a prerequisite that the market value of the loans was less than the nominal amount of the receivables. In order to capitalise the Swedish subsidiary, the foreign parent company intended to contribute the loans provided as shareholder contributions, and the Swedish subsidiary asked the Tax Agency, among other things, whether the contribution provided constituted entirely tax-exempt income.

The Swedish subsidiary considered that the shareholder loans contributed in their entirety constituted a non-taxable shareholder contribution. This was, among other arguments, based on the reasoning that there should be no tax difference for the company whether the contribution is made according to the accounted-for option compared to the option of a contribution being made in the form of a cash amount which is then used to repay the shareholder loans.

According to the Swedish Tax Agency, the issue was about waiving the shareholder loans and that this can be treated as a tax-free shareholder contribution up to the amount corresponding to the market value of the receivables at the time of the contribution.

The Council for Advance Tax Rulings stated that the main question in the case was whether a contribution in the form of shareholder loans, where the market value of the receivables is less than their nominal amount, can be considered a shareholder contribution in its entirety. The Council for Advance Tax Rulings further stated that, with regard to the taxation situation for the donor of the contribution, there is guidance in case law which, in the opinion of the Council for Advance Tax Rulings, must be a starting point for the assessment also with regard to the recipient's situation. The meaning of a contribution must, in the council's opinion, therefore be the same for the donor and the recipient.

The Tax Law Board then found that for a shareholder who converts a receivable into an unconditional shareholder contribution, the receivable is considered to have been disposed of because the receivable relationship has ceased, and the cost basis of the shares is increased, though not by more than the market value of the receivable at the time of conversion. For the limited liability company, the same transaction should mean that the debt ceases to exist and that a contribution is received to the same extent as the cost basis changes. Only to the extent that the conversion results in a change in the cost basis, in the opinion of the Tax Law Board, can the company be considered to have received a shareholder contribution. Furthermore, according to the Tax Law Board, it follows from the main rule on income in the Income Tax Act that a write-off of a debt increases the debtor's tax capacity and that income is received to the corresponding extent. The Tax Law Board also highlighted in this context that exceptions to this arrangement have been made for so-called composition gains.

The Board of Advance Tax Rulings summarised its conclusion as being that a contribution of shareholder loans is to be considered a non-taxable shareholder contribution only to the extent that it corresponds to the market value of the receivables at the time of the contribution.

Since the subsidiary was not in default under the conditions, the income from the waiver of receivables could not be tax-free according to the principles applicable to compositions.

Commentary

As a clear basic principle, a shareholder contribution constitutes tax-free income for the recipient. However, the Swedish Tax Agency has stated in various contexts that when the shareholder contribution is made in a form other than a purely cash contribution, e.g. remission of a claim, the remission constitutes a tax-free contribution only to the extent that the nominal amount of the claim (the amount lent) corresponds to its market value. According to the Swedish Tax Agency, the excess amount thus constitutes taxable income for the subsidiary. However, the Swedish Tax Agency's view is by no means self-evident and the general opinion among practitioners has rather been the opposite and that the financial situation of the subsidiary is irrelevant. According to this view, a parent company's remission of a claim on its subsidiary always constitutes tax-free income for the subsidiary. This is based, inter alia, on the argument that the same economic situation can be achieved by the parent company making a cash contribution instead, which is used to repay the parent company's claim, and that alternatives with the same economic substance should lead to the same result for tax purposes.

To strengthen a subsidiary's financial position, the parent company will often waive all or part of a claim against the subsidiary. Based on the Board of Appeal for Tax Law's decision, caution should be exercised when contributing to and waiving claims within a group where the subsidiary is in a troubled financial situation. This is because the waiver risks leading to a taxable income for the subsidiary.

The preliminary decision has been appealed to the Supreme Administrative Court and it will be interesting to follow the outcome at the highest instance. If you have clients who intend to contribute or waive claims to improve a subsidiary's financial position, you should be aware and point out the risk that the waiver may result in a taxable income for the subsidiary. Feel free to contact one of MOORE's tax experts for further guidance.