Juridische stappen tegen Zweden, wegens bepaling dat belastingaftrek bij huisverkoop slechts in Zweden mag worden geïnvesteerd (en)

The European Commission has decided to refer Sweden to the European Court of Justice because, under Swedish tax law, capital gains from home sales attract tax relief only if the sold home is situated in Sweden and the sales proceeds are reinvested in a replacement residence in Sweden. The unavailability of the tax relief where the sold dwelling is situated outside Sweden or where the proceeds are used to acquire a replacement home outside Sweden is contrary to EC Treaty rules, including those on the free movement of persons. The Commission considers that the tax break should be applied in a non-discriminatory way to all Swedish taxpayers, irrespective of whether they purchase a house in Sweden or in another Member State.

Under provisions contained in Chapter 47 of the Swedish Income Tax Act (Inkomstskattelagen), a resident individual taxpayer may benefit from a deferral of capital gains taxation upon sale of an owner-occupied dwelling, provided that he or she has acquired or intends to acquire a replacement dwelling, in which he or she has or intends to take up residence. However, both the original and the replacement dwelling must be situated in Sweden.

The unavailability of the deferral where either the original or the replacement dwelling is situated outside Sweden not only dissuades residents of other Member States and EEA countries from moving to Sweden but also dissuades Swedish residents from moving to other Member States or EEA countries. Those moving to Sweden and becoming subject to Swedish tax who sell their previous dwellings after having moved to Sweden cannot be granted the deferral even if they acquire replacement dwellings in Sweden. Similarly, those who live and own their dwellings in Sweden cannot be granted the deferral if they decide to move abroad and acquire replacement dwellings there.

The Swedish rules therefore restrict the exercise of the free movement of persons by migrant workers and by any other person wishing to move to or from Sweden. At the same time, they constitute an obstacle to the free movement of capital. The Commission considers that the territorial limitations of the tax relief violate EC Treaty rules on the right of residence in other Member States, free movement of workers, freedom of establishment and free movement of capital (Articles 18, 39, 43 and 56), as well as the corresponding provisions of the EEA Agreement.

The Commission also considers that the discrimination is not justified on the grounds of the need to prevent cross-border tax evasion. Nothing would prevent Swedish tax law provisions from requiring that the taxpayers who had acquired replacement homes abroad would have to keep the Swedish tax authorities posted of any eventual home sales. This could be a precondition for the applicability of the deferral of capital gains taxation to a capital gain arising from a sale of a home in Sweden. Moreover, the Swedish authorities can always exchange information with the tax authorities of the other Member States. The legal framework for such information exchange exists already in the form of bilateral tax treaties and a Council directive on administrative co-operation between the Member States' tax authorities.

Since the Swedish Government did not follow the reasoned opinion issued by the Commission on 13 July 2005 (IP/05/943) the Commission has decided to refer the case to the European Court of Justice.
The latest information on infringement proceedings against the Member States is available on the following site:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm