Slopad utredning om exit-skatt och generösare inriktning på 3:12-utredningen

Introduction

In a short period, the government has announced two pieces of positive news concerning the taxation of business owners and entrepreneurs. Firstly, the government announced that it is closing down the investigation initiated by the previous government, which, among other things, was tasked with considering and proposing a so-called exit tax when a taxpayer moves out of Sweden. Recently, the government has also issued supplementary terms of reference to the ongoing 3:12 investigation, meaning that the investigation's remit will include a more generous approach in its proposal for the reform of taxation for small business owners.

Exit tax

Sweden does not currently have a general taxation of unrealised gains on shares and other securities when an individual moves out of Sweden. However, under certain conditions, taxation in Sweden after emigration may occur upon an actual sale according to a special ten-year rule. According to many of the double taxation agreements that Sweden has entered into with other countries, this possibility of taxation in Sweden is, however, limited in time after emigration or completely eliminated.

The investigation commissioned by the previous government in 2022 was to examine and propose the design of a special exit tax, which would involve taxing unrealised capital gains on shares and other securities upon emigration. This is a form of exit tax that exists in several of our neighbouring countries.

The government has now announced that this investigation has been closed. The government provides no justification for the reasons why the investigation is being closed, other than that the government is prioritising other investigations.
In other words, it will therefore continue to be possible to move out of Sweden without risking immediate taxation upon emigration. Just as today, the existing ten-year rule and applicable tax treaty will determine the extent to which Sweden can tax a sale of shares after emigration.

Changed focus of the 3:12 investigation

Last year, the previous government also appointed a new 3:12 inquiry whose task was to investigate the taxation of capital gains distributions for small business owners. The inquiry was intended, among other things, to present proposals for simplifications and possibly also an adjusted tax rate. The directive regarding an adjusted tax rate has been interpreted by many as an increase in the tax rate applicable to taxation within the low-tax bracket, which today is 20 percent. This part of the inquiry's assignment has created concern among business owners about a deteriorating tax situation.

The government has now issued an additional directive to the inquiry, the aim of which is more generous taxation for business owners and entrepreneurs. The fundamental task of simplification remains. However, the instruction to the inquiry to come up with proposals for a changed tax rate is being abolished, meaning there will be no increase in the tax rate (20 %) within the low-taxed bracket.

According to the current regulations, it has in some cases been problematic to transfer ownership of a company to the next generation, especially to relatives or employees of the company, without incurring negative tax consequences. Certain special regulations have previously been introduced to facilitate generational transfers to some extent, but these rules have had a limited scope and have also been complicated to apply. The committee is now tasked with investigating and proposing changes to the tax rules to facilitate generational transfers of companies.

Under the current regulations, the special tax rules for small companies, which normally involve tougher taxation, do not apply if a passive external investor owns a significant proportion of the company, at least 30 %. However, the way this external investor rule has been applied and interpreted in case law has meant that the rule has often not been applied, despite significant external ownership. This has led to unjustified higher taxation of small companies and is contrary to the rule's fundamental function. The external investor rule has also, in many situations, become practically impossible to interpret and apply. The inquiry is now also tasked with reviewing whether the external investor rule can be changed to improve conditions for small companies.

As a result of the government's additional directive, the investigation has been granted an extension to submit its report and must present its findings no later than 29 March 2024.

Commentary

It is clear that the new government aims to make improvements to the taxation conditions for business owners and entrepreneurs, with a particular emphasis on small and medium-sized enterprises. This is clearly signalled by the closure of the investigation into the exit tax and the more generous direction of the 3:12 investigation.

Perhaps it was surprising that the government chose to close the investigation into the exit tax, as a departure tax already exists in several other EU countries. More expected, and perhaps even more welcome, was the government's directive for a more generous approach to the 3:12 investigation, which the government announced as early as the formation of the government.

In addition to the tax rate not being raised, with the tax rate remaining at 20 per cent, the inquiry is tasked with reviewing several of the rules that currently create significant and, in many cases, seemingly unnecessary practical application problems. This applies to both the third-party rule, which in many cases cannot be applied contrary to the legislative intentions, and taxation during generational transfers. The provisions in these areas are already extremely complicated, and it will be interesting to see how the inquiry chooses to resolve these issues. As a consequence of the extended inquiry period, new legislation can be expected to come into force on 1 January 2025 at the earliest.

For questions about taxation upon emigration and concerning small company owners, please feel free to contact one of Moore's tax lawyers for further guidance.