sou 1999 1 - Regeringen

SOU 1999:1 Summary 35
place with funds which the person subject to taxation has acquired without
any connection to the withholding tax liability. VAT funds, however, are
collected precisely for the payment of VAT, but in this context it should be
noted that other creditors holding funds in trust (e.g. wards in relation to
guardians) do not have any right of priority where the funds held in trust are
co-mingled with the debtor’s own assets.
The assumption that higher tax morals might be promoted through a right
of priority for tax claims is probably based on the notion that a right of priority
for tax claims is predicated on a general opinion that the State’s claims
should be satisfied first. Against this, it can be objected that, thanks to the
right of priority, the State can obtain payment without the person subject to
taxation being required to pay the tax. A greater feeling of responsibility is
created by the fact that office holders, through separate legislation, may
incur a personal payment liability if the State does not obtain full payment
of its tax claims.
During the circulation for comments of the proposals of the Insolvency
Committee, one tax authority asserted that compositions would be made
more difficult if the right of priority for tax claims was abolished. This
opinion was presumably based on the fact that, in conjunction with composition
negotiations, if the right of priority for tax claims were to disappear,
one would also need to persuade the State to vote in favour of the composition.
However, a composition becomes meaningless if only a small portion
of the claims can be reduced; the requisite financial relief is not attained. In
practice, a successful composition usually presupposes the voluntary participation
of the State, even though the State need not do so since the State
has rights of priority (compare Chapter 3, sections 3 and 8 of the Business
Reorganisation Act). The State’s interest in preventing spurious corporate
activities does not require that the State should, in practice, possess a veto
on compositions. Rather, this can be satisfied through other means, e.g.
through voting rights in conjunction with composition negotiations and
through prohibitions on trading. In Denmark, where the right of priority for
tax claims was abolished as early as the 1960s, the highest tax authority
informed the Committee that only a couple of cases have arisen in which
compositions were adopted against the wishes of the State.
The remaining nut to crack is thus the State’s interest in the State coffers
being strengthened through dividends from bankruptcies. The Committee
regards this argument as unconvincing, since all creditors can invoke the
same reason, and the creditors in bankruptcies should not bear greater liability
for the State’s finances than is borne by other taxpayers. In addition,
the sums of money involved are small, in relation to the claims. If we disregard
bankruptcies at the beginning of the 1990s, in which the State’s dividend
at most reached SEK 685 million (1996), we note that the tax dividend