Principle of limited personal liability in the Swedish Tax Procedures Act

Two distinct features of a limited liability company are separate legal existence and consequently limited liability. Those features are also expressed in the principle of limited liability whereby risks are capped by the invested capital. The liability cannot be extended to personal assets. An exception to this principle is made if there has been fraud or other serious wrongdoings. The Swedish Companies Act (2005:551) contains several action-based rules aimed at the company's representatives. Moreover, business companies have freedom of contract based on mutual agreement and free choice. The Swedish Tax Agency, on the other hand, is not operating by the free market rules. Tax liabilities are thus another exception from the principle. Chapter 59 of the Swedish Tax Procedures Act (2011:1244) stipulates that a representative of a company may be liable to pay the amount of tax together with the company, if this person intentionally or through gross negligence fails to pay tax at the right time and in the right way. This separate framework for taxes has been an object of criticism throughout the years, mostly directed at the aspects of legal security and predictability as well as low probability of success in court proceedings against the claims pursued by the state. The Confederation of Swedish Enterprise is driving those issues by lobbying for a revision of the tax liability of representatives. However, the confederation's biased role together with relatively recent development by Supreme Administrative Court ruling warrants an in-depth study of the current regulations. This thesis will investigate and analyze Chapter 59, Section 12-13 and 15 of the Swedish Tax Procedures Act (2011:1244) in administrative courts' application after precedent HFD 2018 ref. 4. This is done by explaining the regulatory framework behind tax liability of representatives, the obligation of a court to follow the law of a superior court, explaining the circumstances in the precedent and lastly by conducting an investigative study of a selection of judgments rendered between years 2018 and 2019. The conclusion shows that current regulations require a balanced view of the situation that proceeded the omission of tax payments when deciding upon personal liability through gross negligence. This was confirmed by Supreme Administrative Court in HFD 2018 ref. 4. Most courts' judgments show an awareness of this fact by either referring to the precedent directly or by describing options available to each representative. Although the liability is not strict, all the studied judgments ended in favor of The Swedish Tax Agency. The precedent is mostly followed by courts, but because of its unusual circumstances, it has limited impact on the outcome of judgments on tax liability.Utredningen om det skatterättsliga företrädaransvaret (Fi 2019:07