Skatteetaten stanser alle fisjoner innen fiskeri

03 Sep 2012

Vi har tidligere i år stilt spørsmål ved skattetatens holdning til skattefrie fisjoner og fusjoner innen fiskerinæringen. Nå har Skattedirektoratets avdeling for bindende forhåndsuttalelser avgitt en uttalelse der det sies […]

Vi har tidligere i år stilt spørsmål ved skattetatens holdning til skattefrie fisjoner og fusjoner innen fiskerinæringen. Nå har Skattedirektoratets avdeling for bindende forhåndsuttalelser avgitt en uttalelse der det sies klart fra at fisjoner ikke kan finne sted uten en beskatning. Dette er oppsiktsvekkende ny juss på et område som i de siste årene har vært svært omdiskutert og omtvistet. Neste stopp er stortinget!

En rekke rederi har anvendt fisjon som selskapsrettslig virkemiddel for å dele et aksjeselskap eller deltakerlignet selskap i flere deler. Spesielt aktuelt ved generasjonsskifte, strukturkvoter eller rett og slett for å splitte opp et flerbåtrederi. Det har ikke tidligere vært stilt spørsmål ved om det er mulig å gjøre for fiskeriselskap. Det har en hel næring og samtlige rådgivere tatt for gitt. Nå viser det seg at skattemyndighetene har en annen oppfatning. Det er sjelden bruk for for en sterk karakteristikk for det arbeid som skatteetaten gjør, men i denne saken vil vi gjøre ett unntak.

Uttalelsen er i skrivende stund ikke publisert på databasen til Skattedirektoratet, men vi antar det er bare et tidsspørsmål. Den gjelder et rederi som ville dele opp aksjeselskapet som eier flere fartøy i to søsterselskap. Det var begrunnet i praksisen knyttet til kvoteutnyttelsesregimet som gjør det enklere for flerbåtrederi å utnytte en kvote ved nybygg. Vilkåret er imidlertid at fartøyene ligger i hvert sitt selskap.

Det å foreta en skattefri deling ved fisjon anså imidlertid Skattedirektoratet at: ”fiskekvoter ikke kan overføres ved fisjon”.

Begrunnelsen er enkelt og greit at:

”det følger av fiskerirettslige regler at fiskekvoter ikke kan overføres ved privatrettslige disposisjoner. Myndigheten til å tildele fiskekvoter tilligger fiskerimyndighetene.”

Vi har flere tvister med skattemyndighetene der vi har hevdet at deres vurdering av jussen stanser effektivt alle skattefri omorganiseringer innen  fiskerinæringen. Det har de ikke kommentert i de 5 årene som har gått siden første sak kom på bordet. Nå har imidlertid BFU avdelingen kommet til denne oppsiktsvekkende konklusjon om at det ikke er mulig å fisjonere, selv om du følger de selskapsrettslige regler til punkt og prikke. Det kan da heller ikke fusjoneres og sannsynligvis ikke disponeres over privatrettslig på annen måte uten å være skattepliktig slik direktoratet ser på saken.
Det er liten tvil i at dette standpunktet stanser alle egenkapitaltransaksjoner innen fiskeri. Også andre næringer der det kreves offentligrettslige tillatelser blir sterkt berørt. Sannsynligvis helt parallelt dersom det kreves tillatelse til omsetning. Konsekvensen er jo ikke bare at alle fremtidige stoppes. De som allerede er foretatt vil jo være gjenstand for full beskatning dersom Skattedirektørens menn og kvinner starter endringssaker til ugunst for rederne.

Dette er en sak som, slik vi ser det, krever litt mer problemforståelse hos de folkevalgte. Det er jo deres bord å lage regler som er like, og praktiseres likt, for alle næringer. Derfor har vi oppfordret organisasjonene om å ta fatt i en politisk prosess. Det må etableres like regler for alle næringer i Norge og det naturlige utfall for denne saken er at det lages en tilføyelse til skatteloven slik at “også fisjoner som krever fiskerimyndighetenes tillatelse til eierendring skal kunne gjennomføres med skattemessig kontinuitet”.

Denne regelendringen bør komme allerede i høst, før mørket senker seg over (annerledes)landet.

 

Om forfatteren

Ulf Sørdal
Ulf Sørdal Ulf H. Sørdal har lang erfaring med fiskeri og oppdrett. Han har arbeidet med skatte- og selskapsrettslige spørsmål og vært involvert i en rekke prinsippsaker for næringene over de siste 20 år. Han har deltatt i en rekke transaksjoner og konsolidering av både oppdrett, industri og fiskeri gjennom både juridisk arbeid og praktisk forretningsutvikling. Han har og har hatt en rekke styreverv.

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