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Consultation Responses

Comments on the Proposed Act Amending the Corporate Tax Act, the Bankruptcy Tax Act, and the Tax Assessment Act (Repeal of the Tax Exemption for Certain Ports) – Ref. No. 2023-7800

On November 21, 2025, the Ministry of Taxation submitted the above-mentioned draft (hereinafter “the proposal”) to Danske Havne, requesting comments.

The purpose of the proposal is to repeal the current rules on tax exemptions for Danish ports in response to the European Commission’s state aid investigation into the tax treatment of ports, which in several EU countries—including Denmark—were either tax-exempt or subject to low taxation.

Danske Havne has reviewed the proposal and will now present its comments on the proposal.

1. General Remarks

    Effective Date of Legislation
    Danske Havne notes that, pursuant to Section 4, subsections (1) and (2), the bill is proposed to take effect on July 1, 2026, with effect for income years beginning on or after July 1, 2026.

    It also follows from the proposed provision in Section 3(10), seventh sentence, of the Corporate Tax Act that:

    “If the threshold amount specified in the first paragraph is exceeded, the port becomes liable for tax under Section 1, effective from the beginning of the income year in which the threshold amount is exceeded.”

    At the same time, the explanatory notes to the bill, on page 31, state that:

    It should be noted that the subsidy would be deemed to have been granted at the time when the port would have been required to file an information return in accordance with the general provisions of the Tax Audit Act, had the port been subject to taxation in the tax year to which the information relates.

    For a port whose tax year follows the calendar year, for example, mean that the aid associated with tax exemption in the 2027 income year would be deemed to have been granted on June 30, 2028—which would be the reporting deadline under Section 12(1) of the Tax Audit Act—if the port had been subject to taxation. When assessing whether, on June 30, 2028, aid in the form of tax exemption for the 2027 income year can be granted without exceeding the de minimis ceiling, other de minimis aid granted during the period beginning July 1, 2025, must therefore be taken into account.

    We would like to ask the Ministry of Taxation to confirm, as a starting point, our understanding that ports that exceed the de minimis threshold as of June 30, 2028, and use the calendar year as their tax year will become subject to taxation as of January 1, 2027.

    If the answer to the above is affirmative, we will also propose that the Ministry of Taxation clarify the wording in the explanatory notes on page 31 of the bill, including addressing any potential consequences of postponing the deadline for providing information:

    “(...) For a port whose tax year follows the calendar year, for example, mean that the aid associated with tax exemption in the 2027 income year would have to be deemed to have been granted on June 30, 2028—which would be the reporting deadline under Section 12(1) of the Tax Audit Act—if the port had been subject to taxation. When assessing whether, on June 30, 2028, aid in the form of tax exemption for the 2027 income year may be granted without exceeding the de minimis ceiling, other de minimis aid granted during the period beginning on July 1, 2025, must therefore be taken into account.”

    Timing of the Assessment of Whether the De Minimis Aid Threshold Has Been Exceeded
    Danske Havne understands that the assessment of whether a port has received aid exceeding the de minimis threshold is based on a rolling three-year period. Pursuant to Section 4(1) and (2) of the bill, the law will take effect on July 1, 2026, and will apply to income years beginning on or after July 1, 2026. However, Danske Havne is concerned that the legislation effectively has retroactive effect, as the explanatory notes to Section 1(5) (page 31, third paragraph of the bill) state that, when assessing the aid, other de minimis aid dating back as far as July 1, 2025, must be taken into account.

    The Ministry of Taxation is also asked to comment on the following examples:

    Example A
    Company A uses the calendar year as its tax year. Company A receives other government aid that is not granted under a block exemption scheme or for other eligible purposes, as follows:

    • October 1, 2025: EUR +100,000
    • October 1, 2026: EUR +100,000
    • June 30, 2028: EUR +110,000 (based on net income as reported in financial statements prepared in accordance with the Danish Financial Statements Act for the calendar year 2027)

    For the sake of good order, Danske Havne asks the Ministry of Taxation to specify in which tax year Company A becomes liable for tax.

    Example B
    Company B has received the same aid for the calendar years 2025 and 2026 as Company A in Example A above. For the calendar year 2027, Company B has a net income based on financial statements prepared in accordance with the Danish Financial Statements Act, with a tax value of EUR 50,000. Company B has also received other government subsidies in the calendar year 2027 that were not granted under a block exemption scheme or for any other eligible purpose, and the amount of these subsidies is calculated at EUR 60,000.

    For the sake of clarity, Danske Havne is asking the Ministry of Taxation to specify in which tax year Company B becomes subject to taxation.

    Example C
    Company C has received the same aid for the calendar years 2025 and 2026 as Company A in Example A above. For the calendar year 2027, Company C has a net income, as reported in financial statements prepared in accordance with the Danish Financial Statements Act, with a tax value of EUR 50,000. On April 1, 2028, Company C received other government aid that was not granted under a block exemption scheme or for any other eligible purpose, and the aid amounts to EUR 60,000.

    For the sake of clarity, Danske Havne is asking the Ministry of Taxation to specify in which tax year Company C becomes subject to taxation.

    Example D
    Company D reports a net income of EUR 0 for the calendar years 2025–2027, based on financial statements prepared in accordance with the Danish Financial Statements Act. At the same time, Company D has received other state aid that was not granted under a block exemption scheme or for any other eligible purpose. The aid exceeds the de minimis ceiling for the years in question.

    It is Danske Havne’s understanding that the company will not become subject to taxation, as it has no tax liability for the relevant tax years. Can the Ministry of Taxation confirm this?

    Danske Havne considers it inappropriate that ports that become subject to taxation effective January 1, 2027, due to exceeding the de minimiswill not be able to pay estimated taxes for the 2027 tax year because their tax liability cannot be determined until after the annual report for the 2027 tax year has been filed. This will undoubtedly result in additional costs for the ports in the form of late-payment penalties. Danske Havne requests the Ministry of Taxation’s comments on this matter.

    Facilities/assets that, by their nature, are specific to ports
    As the Ministry of Taxation is aware, the ports own infrastructure in the form of a number of specific assets that are unique to the activities in which the ports are engaged. Danish Ports welcomes the Ministry of Taxation’s efforts to address the determination of the tax basis for these assets. There are a number of such special assets—for example, navigation channels and waterways that the port has had excavated, straightened, and dredged (often on land that the port does not own), as well as dredging, etc., of the port or basins, etc.—but these assets are absolutely essential for the ports to carry out their operations, which is why Danske Havne proposes that these assets be included as part of the infrastructure assets listed in the bill.

    Calculation of Tax Basis Values
    Danske Havne wishes to ensure as smooth a transition to tax liability as possible for the ports —including that the Ministry of Taxation, in determining the tax base values, allows the ports, to the greatest extent possible, to use limited resources, apply a simplified method, and avoid subsequent discussions with the tax authorities. Danish Ports therefore proposes that ports also be given the option to use book values as tax base values, as described below.

    Interaction with the Provisions of the Ports Act
    Danish Ports notes that the bill does not simultaneously propose an amendment to the Ports Act. The tax-exempt status of ports has traditionally been justified partly by the ports’ role as managers of (critical) port infrastructure and partly by the fact that, under Section 5 of the Ports Act, ports are subject to a so-called obligation to receive ships. Today, ports are also subject to a number of restrictions on their commercial port activities. These restrictions are primarily intended to prevent ports from exploiting the advantage of their corporate tax exemption when competing with private operators both within and outside the port.

    The Ports Act thus explicitly lists in Section 6a(1), Section 9(5) (self-governing ports), and Section 10(3) (port corporations) the port activities in which the ports may engage. It is therefore not immediately possible for the ports to engage in activities other than those listed.

    Under Section 9(6) (self-governing ports) and Section 10(4) (port corporations), ports are authorized to carry out a number of additional port activities. However, these options are limited, in part, by whether private operators are already carrying out the activity in question or intend to do so in the future; furthermore, the option is subject to the requirement that the activity, among other things, be spun off into an independent, taxable corporation.

    As noted, the limited scope for port activities and the restrictions on conducting additional commercial activities have been primarily justified by the ports’ tax-exempt status. Thus, the bill for the 2012 revision of the Ports Act stated that

    The Ministry of Transport has emphasized that the new activities that municipal self-governing ports and municipal joint-stock ports may carry out must be operated in such a way that they do not distort competition with private operators.

    With the transition to mandatory tax liability, the ports will no longer have a competitive advantage, but will continue to be subject to the obligation to manage port areas and receive ships to some extent, while also remaining subject to restrictions on their commercial port activities. Overall, the proposed legislation would thus place the ports in a worse position than they are in today. Danske Havne finds this regrettable.

    One of the recommendations (No. 15) from the Ministry of Transport’s Port Partnership was that the regulatory framework for port-related activities be evaluated and updated to ensure that the Port Act is current and future-proof, so that it supports the development of both existing and new green technologies. Danish Ports supports this recommendation and points out that, with the transition to mandatory tax liability, it is important to ensure that ports have a regulatory framework for their activities that is in step with the times.

    Danish Ports will therefore call for the Port Act to be revised as soon as possible so that ports are, at a minimum, able to carry out the port activities already permitted under the Port Act today, but without the additional terms and conditions that currently apply, but which are no longer relevant to maintain in order to avoid distortions of competition once the ports become subject to taxation. Otherwise, the ports will in the future have to operate in a competitive market with full tax liability and one hand tied behind their backs when it comes to commercial activities. Similarly, under Section 6a(2) of the Ports Act, any land that a port acquires outside the port area (so-called “dry ports”) must be placed in an independent, taxable corporation. Here, too, the Minister of Transportation’s justification in the bill states that the separation was intended to prevent distortion of competition

    For competition-related reasons, the acquisition and operation of land that does not adjoin the port’s existing land, as well as the conduct of the port’s activities on such land, must be spun off into an independent, taxable limited liability company to avoid cross-subsidization and ensure transparency for users.

    It will place a significant administrative burden on the ports if certain port activities and port areas must continue to be spun off into separate subsidiaries when the need to ensure taxation of the port activity or area in question no longer exists, since the port activity or area will also be taxed by the port itself.

    Fair Competition
    Taxes increase the costs of maritime transport and distort competition. Danske Havne requests an analysis of how the proposed tax rules compare with those in Norway, Sweden, Finland, Estonia, Latvia, Lithuania, Poland, and Germany—all of which are alternative transshipment locations for Danish imports and exports.

    The Merger Tax Act
    In connection with the transition to tax liability for certain sectors (e.g., water and wastewater utilities), a special provision was introduced in the Merger Tax Act (for water and wastewater utilities, Section 14(l) of the Merger Tax Act), which allowed water and wastewater utility companies falling under Section 1(1)(2)(h) of the Corporate Tax Act to be converted into corporations on a tax-free basis, as these utility companies could be organized in various ways.

    Danish Ports calls for the inclusion of a similar provision regarding ports that, as a result of the proposal, will become taxable, whereby, for example, taxable ports operated by municipalities—and thus presumed to be taxable under the proposed provision in Section 1(1), No. 2 j, may be converted into corporations tax-free in accordance with the rules of the Merger Tax Act, so that the ports will henceforth have the opportunity to adapt to whatever future developments may require for each individual port without this entailing negative tax consequences.

    2. Technical Notes

    Comments on Section 1, No. 6 of the Bill (new provision in Section 5 D, subsection 8 of the Corporate Tax Act)
    It appears from the Bill under section 2.1.3, “The Proposed Scheme” (p. 17, first paragraph), that:

    “The proposed scheme will apply regardless of whether the individual infrastructure asset is depreciated in accordance with the rules of the Depreciation Act on the depreciation of operating assets or in accordance with the rules on the depreciation of buildings and installations.”

    It is Danske Havne’s understanding that, in this context, the definition of infrastructure assets in the bill is relevant solely for the purpose of determining the initial values of the assets listed in the provision, which, upon becoming subject to taxation, may use written-down residual values. Furthermore, it is Danske Havne’s view that a separate assessment must continue to be made in accordance with the rules of the Depreciation Act to determine the depreciation rates for individual assets—including that the bill is not intended to expand the scope of infrastructure facilities covered by Section 5 C(2) of the Depreciation Act.

    Please ask the Ministry of Taxation to confirm that this understanding is correct.

    The definition of infrastructure assets in the proposed provision of Section 5 D, subsection 8, second sentence, of the Corporate Tax Act
    It is proposed that:

    "Infrastructure assets include piers, wharf facilities, basins, breakwaters, roads, and yards, docks, fixed silos, flat silos, storage yards, railway components (ballast, ties, rails, signaling systems, remote control systems, masts, and overhead lines), access ramps, handling facilities, large harbor cranes, large tanks for oil, gas, etc., and similar assetsused in port operations.  

    It also appears from the bill, under section 2.1.3, “The Proposed Scheme” (p. 15, last paragraph, and p. 16, first paragraph), that:

    (…) These assets are characterized by being facilities or assets which, by their nature, are specific to ports and/or not readily comparable to other companies’ facilities or assets, such that determining a market price must be considered to involve a particularly high degree of uncertainty.

    and

    (…) For assets not included in the list of infrastructure assets, the ports will be required to use the assets’ fair market value as the tax basis. This will apply, for example, to warehouses, storage facilities, terminal, office, and production buildings, small cranes and lifting equipment, trucks, forklifts, train sets, fences, fixtures and fittings, small silos, etc.

    Danish Ports notes that the special classification of assets is due to their unique nature for ports, which are not comparable to other companies’ facilities or assets, and where the determination of the fair value of these assets is considered to involve a particularly high degree of uncertainty.

    Danish Ports acknowledges the consideration shown by the Ministry of Taxation, as a valuation based on market value would be extremely burdensome for the ports.

    However, in the opinion of Danske Havne, it is inappropriate that the listed assets are so limited; furthermore, this gives rise to ambiguities, which could potentially lead to unnecessary discussions with the Danish Tax Agency regarding the basis for the valuation of individual assets.

    In this regard, Danske Havne proposes that, at a minimum, the following be added: stone embankments, shore power facilities, batteries for electricity storage, waste management facilities, flood barriers, ship waste reception facilities, electrical and pipeline systems, warehouses and storage facilities, foam fire suppression systems, as well as the excavation, straightening, and dredging of navigation channels to be added to the list or the enumeration in the provision.

    Infrastructure changes over time, so it is essential to find a method that ensures changes to the infrastructure related to normal port operations do not lead to lengthy negotiations with the Tax Administration regarding its valuation.

    Danish Ports is therefore concerned that the current wording will create uncertainty regarding which assets are covered and, as a result, could potentially lead to disagreements with the Danish Tax Agency in the future.

    The written-down residual values of the assets pursuant to Section 5 D, paragraph 8, of the Corporate Tax Act, first sentence
    Danske Havne views it as positive that the Ministry of Taxation has proposed in the bill to determine the market value of assets that, due to their special nature, cannot be valued on a free market, and an alternative valuation method is proposed for these “infrastructure assets.”

    However, Danish Ports has concerns about the proposed model for calculating depreciated replacement values for “infrastructure assets,” as this model—similar to the determination of market values—could lead to inappropriate discussions regarding the basis for the valuation. Furthermore, this would involve highly complex calculations that could entail significant costs and be resource-intensive for the ports to carry out, as it would, in practice, mean recalculating the acquisition cost of all relevant facilities at the port. Furthermore, such a calculation would still be subject to review by the Danish Tax Agency. Danish Ports is also generally uncertain as to how the Ministry of Taxation believes a written-down replacement value should be calculated.

    Danish Ports proposes that the Ministry of Taxation prepare sample calculations showing how a written-down replacement value for an infrastructure asset, pursuant to the proposed provision in Section 5 D(8), first sentence, of the Corporate Tax Act, should be calculated based on objective criteria, so that unrelated parties would arrive at the same result.

    Tax basis based on book values
    It should be noted that, with regard to the definition of “infrastructure assets,” the starting point is whether the asset is not immediately comparable to other companies’ facilities or assets. Danske Havne notes that, based on the proposed wording, a number of assets—such as machinery and equipment, which would also be port-related equipment—will not be covered by the term “infrastructure assets,” even though there is no separate market that can serve as a basis for determining market value. When such an asset is not considered an infrastructure asset, the depreciation base for that asset cannot be determined as the depreciated replacement cost under the proposed bill. Determining a market price for these assets must therefore be considered to involve a particularly high degree of uncertainty—regardless of whether the asset qualifies as an infrastructure facility in the narrow sense.

    Danish Ports thus questions why it is considered that only “infrastructure assets” have characteristics that create uncertainty regarding their market price, and urges the Ministry of Taxation to consider whether a special legal provision should also be introduced, that allows ports to choose book values as tax basis for assets that are not infrastructure assets pursuant to Section 5 D(8) of the Corporate Tax Act, and that these book values be based on the port’s audited financial statements as of December 31, 2026, see also the principle set forth in SKM2021.585 SR, Question 3.

    Interaction with the provisions of the Depreciation Act
    Danske Havne notes that the already difficult assessment under Section 5 D, (8) may be further complicated when a subsequent reassessment must be conducted under the rules of the Depreciation Act for assets classified as “infrastructure assets” under Section 5 D(8) of the Corporate Tax Act, but based on different criteria. Against this background, it is proposed that the Ministry of Taxation prepare a schedule of the most typical port-specific assets, specifying the provision and depreciation rate under which the assets in question are to be depreciated in accordance with the rules of the Depreciation Act. Without such a list, significant uncertainty is anticipated regarding which assets are considered infrastructure facilities, real estate, long-lived operating assets, etc., under the rules of the Depreciation Act, which could lead to unintended disputes over the basis for depreciation in the future.

    The Ministry of Taxation is urged, at a minimum, to prepare an overview of the depreciation rates and groups under which infrastructure assets, pursuant to Section 5 D(8) of the Corporate Tax Act, are depreciated in accordance with the rules of the Depreciation Act, including:

    • piers
    • quay facilities
    • basins
    • bulwark
    • roads
    • seats
    • dock
    • silos
    • flat silos
    • storage spaces
    • railway components (ballast, ties, rails, signaling systems, remote control systems, masts, and overhead lines)
    • access ramps
    • driving range,
    • port cranes,
    • tanks for oil, gas, etc.

    In the event of stone-throwing, etc., see the comment by Danske Havne above in the section “Definition of Infrastructure Assets” in the proposed provision of Section 5 D, subsection 8, second paragraph, of the Corporate Tax Actare added to the text of the law, Danske Havne also requests that the Ministry of Taxation add these assets to the list.

    The Ministry of Taxation should also consider whether certain ancillary assets—particularly those related to ports—will be eligible for depreciation under, for example, Section 14(3) of the Depreciation Act.

    Examples include special excavation sites physically located at the port for the purpose of storing, for example, ship-generated waste, a ship-generated waste reception facility located in direct connection with commercially operated ships, or certain harbor channels/dredged areas, etc., that are used exclusively by commercially operated ships eligible for depreciation.

    Danish Ports also seeks confirmation from the Ministry of Taxation that a port that becomes subject to taxation and uses market values for all of its assets will be able to allocate a tax basis to the port’s intangible assets/rights (amortizable goodwill), provided that the valuation shows that the port’s operations will be able to generate a significant profit in the future.

    Deduction for Historical Civil Service Obligations
    In the opinion of Danske Havne, special consideration should be given to the tax treatment of historical civil service obligations that arose before the port companies became subject to taxation. For reference, see SKM2021.232.SR, in which a heating company had assumed unfunded civil servant pension obligations upon becoming subject to taxation. The case also refers to the special provision in Section 7 Z of the Tax Assessment Act, which stipulates that water and wastewater utilities are not required to include income intended to cover civil servant pension obligations when calculating taxable income. In the case, the Tax Council ruled that the heating company must include the amounts collected on behalf of the municipality in its taxable income, without simultaneously being entitled to a deduction for the expenses. This resulted in asymmetric taxation to the detriment of the company, which is subject to taxation. This issue is also relevant for port companies that, in accordance with established practice, enter into or are subject to such partnerships with municipalities.


    Properties: Under current law, buildings and installations must be valued at their market value at the time of the transition to tax liability, in accordance with Section 5 D, subsections 3 and 4, of the Corporate Tax Act, respectively.

    As with the assets discussed above, Danske Havne sees significant uncertainty regarding the valuation of the ports’ real estate, particularly the buildings, due to the specific restrictions to which the ports are subject under Sections 6 and 6a of the Ports Act, which will have a material impact on the market value.

    Experience with property valuation under the new property tax system has shown that valuing logistics properties in port areas is extremely complex. Danish Ports fears that the proposed bill involves the same level of complexity, but in this case, the ports are required to undertake this costly task.