The Supreme Administrative Court (HFD) has determined in favour of the Council for Advance Tax Ruling’s advance ruling implying that Board fees are to be taxed as employment income. Consequently, the entity paying the Board fees will also be liable to pay employers’ social security contributions on such fees.
We have previously reported on an advance ruling in which the Council determined that Board fees comprise employment income, as the assignment to serve as Board member is personal and, according to the Swedish Companies Act (2005:551), can only be held by a natural person. This advance ruling has now been confirmed by HFD.
Previously, the Tax Agency has had the view that if there are at least three Board assignments being undertaken at the same time by the same individual, the Board work would be seen to comprise income from business operations on the premise that the Board assignments did not refer to the individual’s own company or to a company comprising an associated company.
We interpret HFD’s decision as that, in principle, one can no longer invoice Board fees through one’s own company. This can be done only in certain very special situations. As this is in conflict with what the Tax Agency has previously seen to apply, this decision is most certain to create problems for many individuals who, today, invoice Board fees via companies. However, it remains to be seen how the Tax Agency will choose to respond in terms of already invoiced Board fees. Still, it is clear that compensation in the form of Board fees made from now on should be paid out as services, and should comprise the basis for payment of employers’ contributions.
Feel free to contact us if you wish to obtain guidance in handling this question regarding Board fees.
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