Supreme Court: no tax on void company payouts later repaid

Skattestyrelsen had, in a 2018 decision, increased the individual's personal income for the income years 2016 and 2017. The agency treated a series of transfers from Virksomhed ApS 1 to the individual and to other natural and legal persons closely related to him as salary and disguised salary to the individual. The amounts were therefore regarded as taxable, with taxation at the time of acquisition, which the agency considered to be the day the individual transferred the amounts on.

Landsskatteretten upheld Skattestyrelsen's decision.

In 2018, Virksomhed ApS 1 was placed under bankruptcy proceedings, and the trustee brought proceedings against the individual and the related natural and legal persons who had received amounts from the company. The trustee argued that the transfers lacked any business justification, that the dispositions were invalid, and that the amounts paid out had to be repaid to the bankruptcy estate.

By judgment of February 2022, Retten i Holstebro held that the dispositions in question were invalid and that there was a duty to repay the amounts received. The judgment was appealed, but during the appeal the parties reached a settlement under which the individual and his related parties accepted the Retten i Holstebro judgment. The amounts were then repaid to the bankruptcy estate.Domsdatabasen

The question before Højesteret was whether the fact that the dispositions had been declared invalid, and that the amounts had been repaidDomsdatabasen, meant that the individual should not be taxed on them.

Højesteret emphasised that the dispositions underlying the increased tax assessments for 2016 and 2017 had, by final judgment and at the trustee's claim, been established as invalidDomsdatabasen, and that the amounts had been repaid. That applied both to the transfers made directly to the individual and to the transfers to persons closely related to him.

On that basis Højesteret found that the individual could not be regarded as having acquired a final right to the amountsDomsdatabasen, and that he was not liable to tax on themDomsdatabasen. Landsretten had reached the same result, and Højesteret affirmed its judgmentDomsdatabasen.

The practical consequence is that an assessment of disguised salary does not stand where the underlying transfers are subsequently declared invalid by final judgment and the amounts are repaidDomsdatabasen: without a finally acquired right, there is nothing taxable. The ruling covers amounts channelled through related parties as well as direct paymentsDomsdatabasen, since both rested on the same invalid dispositions. Legal basis: Højesteret judgment of 8 September 2026Domsdatabasen in case BS-53040/2025-HJRDomsdatabasen.