SWEDEN Law and Practice Contributed by: Albert Wållgren, Henrik Ossborn and Lionardo Ojeda, Advokatfirman Vinge KB
7.5 Obtaining Legal Opinions As outlined in 6.4 Construction of Bankruptcy- Remote Transactions , one opinion that address - es several issues, including tax, is obtained in connection with a Swedish securitisation trans - action. The tax section of such opinion generally includes that: • any non-Swedish SPE (as applicable) will not be taxable in Sweden; • no stamp (or similar) taxes in respect of the transaction documents will apply; • there will be no withholding of tax on pay - ments made by a Swedish SPE; and • there will be no VAT on the sale of receiva - bles/loans or services provided to the SPE. 8. Accounting Rules and Issues 8.1 Legal Issues With Securitisation Accounting Rules In general, the legal analysis and treatment of a securitisation is independent from the account - ing analysis and treatment, and vice versa. Con - sequently, a legal true sale of the securitised asset may not necessarily entail a derecognition of assets from an accounting perspective. How - ever, the accounting analysis and treatment are often affected by the legal treatment, meaning that a legal true sale is necessary, accounting- wise, to achieve a derecognition, though it is not necessarily sufficient to reach such conclusion. On the contrary, the legal treatment is not affect - ed by the accounting treatment, although the relevant transaction is often structured in a legal manner to achieve a certain accounting treat - ment.
and non-petition undertakings from all parties involved.
7. Tax Laws and Issues 7.1 Transfer Taxes
There is no specific transfer tax for the SPE; however, if the SPE makes a gain on its assets, this could result in profit being taxable in accord - ance with that set out in 7.2 Taxes on Profit . 7.2 Taxes on Profit A Swedish SPE is taxed on its taxable net profits at the corporate tax rate of 20.6%. The basis for the taxable net profits is the accounting net profits, adjusted for items that are not taxable or tax-deductible. Tax deductions for net inter - est expenses are generally restricted to 30% of tax-adjusted EBITDA. Practitioners typically attempt to mitigate such taxes by designing the operations, income and expenses (notably the waterfall) of the SPE such that it makes no or There is no Swedish withholding tax on cross- border payments, nor on interest payments. Div - idends (if any) paid by the SPE to a non-resident shareholder may be subject to withholding tax. 7.4 Other Taxes little accounting net profit. 7.3 Withholding Taxes Swedish VAT may apply in respect of services performed for an SPE. Such VAT risk is normally ascribed to the servicer (ie, if VAT is applied, the service fee will decrease and the servicer will receive its fee post-deduction of VAT); however, if such risk is not acceptable to the originator as servicer, the services can sometimes be performed for no consideration in order to miti - gate the risk (in which case, the funds will flow through the waterfall).
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