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Caroline Nordklint

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  • Bevisrättens tillämpning i skatteprocessen

    2019. Caroline Nordklint.

    Thesis (Doc)

    The Swedish law of evidence is based on the principle of the free evaluation of evidence, meaning that the courts, as a main rule, should not be bound by any legal rules in its evaluation process of the evidence. Swedish tax law is, contrary to the law of evidence, based on the principle of legality. According to the principle of legality, tax shall follow from the law and this also applies to the tax procedure, whereby the Swedish Tax Agency and the courts need constitutional support for their executive and judicial activities. In addition, the Swedish tax procedure is characterized by high standards on the rule of law. The rule of law concerns the requirement that tax law should be predictable and foreseeable. These two branches of law, with different purposes and views, should be combined in the same tax procedure. Conflicts are unavoidable and this evokes the question if there is need for a more regulated Swedish law of evidence as it is applicable and interpreted in procedural tax law.

    The overall purpose of the thesis is to investigate and analyze the application of the law of evidence in the Swedish tax procedure, specifically concerning the evaluation of evidence in tax cases. Firstly, the thesis aims to examine and analyze the main rules for the law of evidence in the tax procedure, as well as identifying some established exemptions to these rules. These exemptions are further analyzed in order to investigate if there is need for such exemptions, and if there are any problems when these exemptions should be applied in a case. Secondly, the thesis aims to explore if there is need for additional exemptions from the main evidential rules in the tax procedure. As part of this objective, certain norms with regards to the rule of law and the tax procedure are analyzed in order to investigate in what way those norms have an impact on the application of the evidential rules and principles in the tax procedure. As a result of the analysis, the examination will present proposals for measures to promote improvements with regards to the application of the law of evidence in the tax procedure. 

    In the thesis, several arguments for more regulations in relation to the evidential issues in the tax procedure are presented. One argument is based on the conflict with the principle of legality and the importance of a predictable and foreseeable tax procedure. Sometimes the best alternative to avoid such conflicts is to introduce a norm in the law, which states how certain evidence should be evaluated, so-called instruction on the evaluation of evidence. However, this could cause conflict with the principle of the free evaluation of evidence. Therefore, it is argued that as a first alternative one should investigate if a similar evidential effect could be met by adjusting the evidential rules in relation to the application of law and the issue of law. Two examples of such an adjustment is to develop a presumption of evidence or to introduce an alleviation of evidentiary burden.

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