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- Nordklint, Caroline, 1983-
(författare)
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Bevisrättens tillämpning i skatteprocessen
- 2019
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- The Swedish law of evidence is based on the principle of the free evaluation of evidence, meaning that the courts, as a main rule, should not be bound by any legal rules in its evaluation process of the evidence. Swedish tax law is, contrary to the law of evidence, based on the principle of legality. According to the principle of legality, tax shall follow from the law and this also applies to the tax procedure, whereby the Swedish Tax Agency and the courts need constitutional support for their executive and judicial activities. In addition, the Swedish tax procedure is characterized by high standards on the rule of law. The rule of law concerns the requirement that tax law should be predictable and foreseeable. These two branches of law, with different purposes and views, should be combined in the same tax procedure. Conflicts are unavoidable and this evokes the question if there is need for a more regulated Swedish law of evidence as it is applicable and interpreted in procedural tax law.The overall purpose of the thesis is to investigate and analyze the application of the law of evidence in the Swedish tax procedure, specifically concerning the evaluation of evidence in tax cases. Firstly, the thesis aims to examine and analyze the main rules for the law of evidence in the tax procedure, as well as identifying some established exemptions to these rules. These exemptions are further analyzed in order to investigate if there is need for such exemptions, and if there are any problems when these exemptions should be applied in a case. Secondly, the thesis aims to explore if there is need for additional exemptions from the main evidential rules in the tax procedure. As part of this objective, certain norms with regards to the rule of law and the tax procedure are analyzed in order to investigate in what way those norms have an impact on the application of the evidential rules and principles in the tax procedure. As a result of the analysis, the examination will present proposals for measures to promote improvements with regards to the application of the law of evidence in the tax procedure. In the thesis, several arguments for more regulations in relation to the evidential issues in the tax procedure are presented. One argument is based on the conflict with the principle of legality and the importance of a predictable and foreseeable tax procedure. Sometimes the best alternative to avoid such conflicts is to introduce a norm in the law, which states how certain evidence should be evaluated, so-called instruction on the evaluation of evidence. However, this could cause conflict with the principle of the free evaluation of evidence. Therefore, it is argued that as a first alternative one should investigate if a similar evidential effect could be met by adjusting the evidential rules in relation to the application of law and the issue of law. Two examples of such an adjustment is to develop a presumption of evidence or to introduce an alleviation of evidentiary burden.
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- Krzymowska, Adriana, 1987-
(författare)
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Skattepliktiga överlåtelser i inkomstslaget kapital
- 2018
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Capital gains and losses are taxed under the Income Tax Act (ITA) and occur when an asset is divested. The concept of divestment, which is regulated in §§ 3-10 in chapter 44 of the ITA, creates the scope of taxable events. Only those transactions that fall into the definition of divestments in accordance with §§ 3-10 in chapter 44 of the ITA are considered taxable events. Gifts, inheritance etc. are not considered divestments and are accordingly not taxed under the ITA.The objective of this doctoral project is to examine and analyze the concept of divestment in regards to the taxation of capital gains and losses. The purpose is to identify (a) what components, or requirements are necessary in order to form at transaction that is a divestment and (b) how those requirements are defined. This purpose requires an inventory of applicable law and practice as well as a study of the context of capital gains taxation. The study shows that an divestment is an act through which the former owner disposes of the asset in a definitive manner while directly or indirectly receiving sufficient compensation. The definitive disposal is characterized by that the rights and obligations associated with a particular asset are suspended in such a way that the ownership of the asset expires. This can occur if the asset is modified in such a way that the characteristic components of the asset are changed. If that happens the old asset is considered to have been exchanged for the new one. A divestment typically requires at least two parties.Legal certainty sets boundaries for the interpretation of the concept of divestment. The taxation should as far as possible be neutral, take into account if the transaction creates an (at least theoretical) ability to pay tax and if possible avoid solutions that create unnecessary lock-in effects. The context in which an assessment problem has occurred, principles of reciprocity, continuity, symmetry and consistency in the tax system should be taken into account when assessing unclear cases. In the assessment of whether there has been a divestment, the transaction should be broken up into segments and analyzed. In an unclear situation the assessment of whether a divestment was made or not must always be based on the motives of capital gains and loss taxation.
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