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Newsletter No. 06/2019

27.06.2019

1. Regulations for simplified joint-stock companies adopted by the Sejm

On 13 June, the Sejm adopted an amendment to the Code of Commercial Companies which makes it possible to set up simplified joint-stock companies from March 2020 onwards. Those firms will constitute a third type of capital company (alongside limited liability companies and joint-stock companies).

The establishing, operating, managing and winding-up of such companies will be simpler than in the case of existing capital companies. The capital requirement to establish a simplified joint-stock company will be PLN 1. Registration can be made electronically within 24 hours or in the traditional way.

It will be possible to pass resolutions by email or during video conferences. Although it will not be possible to list shares in such a company on the stock exchange, it will be possible to transform such a company into a joint-stock company in order for it to be listed on the stock exchange.

The structure of management bodies will also be uncomplicated. A new feature will be the ability to appoint a council of directors to manage the company’s affairs, to represent it and to exercise supervision.

The winding-up process will also be easier and shorter. It will also be possible to close such a company without winding-up, by shareholders taking over its assets and debts.

The impetus for the creation of this new type of company came from the start-up community. Similar types of companies have been introduced in Slovakia and France.

2. Change in the Tax Office’s position regarding investment zones

Small, medium and large enterprises can receive decisions for support that are issued for a period of 10 to 15 years, depending on the location of a project. During this time enterprises are granted an income tax exemption. An exemption within a Polish Investment Zone can apply to both the initial construction of new plants and to the expansion of existing plants.

Until April, the Director of the National Tax Information Office held the opinion that all income from the activity that a support decision refers to was exempt from tax, up to the limit of the public aid granted.

A change of position took place at the beginning of May, after the Tax Office issued several individual interpretations. The change is that only income from a new investment can be exempted from income tax. Investments can be carried out over several years. This means that an enterprise will not be able to benefit from the exemption during the entire period granted to it in the support decision.

3. Plans to introduce fees for individual interpretations

It currently costs PLN 40 to receive an individual tax interpretation issued to protect a taxpayer from negative legal effects if the indications contained within it are applied.

The draft Tax Ordinance envisages that an individual tax interpretation in certain situations will cost a lot more in the future. A fee of PLN 2,000 will be payable when:
  • the tax benefit for the taxpayer exceeds or may exceed PLN 500,000 or;
  • in the current state of affairs, or future events, there are features and circumstances of the taxpayer’s actions that will require an assessment of whether the method of its operation was artificial or;
  • the subject of the inquiry is transactions between related parties regarding a transfer of material assets or;
  • the application concerns agreements to avoid double taxation, other international agreements or provisions of European Union law.

Payment will have to be made within seven days of submitting such an application.

4. Shareholder registers will operate from 2021

Shares held by shareholders in joint-stock companies and limited joint-stock partnerships will be forcibly dematerialised and will be entered in a special register. Dematerialisation will consist in storing the shares in an IT system.

As a result of this the safety of trading in securities will be increased, while the costs of their production, transport and storage will be reduced, and the lack of anonymity of bearer shares will make it more difficult to commit fiscal offences such as money laundering.

5. What can a person who is punished for not appearing in administrative proceedings do?

In administrative proceedings the principle is that a person summoned by an official body is required to appear only within the municipality or city in which he lives and in the neighbouring municipalities or cities. However, the specific nature of a case may require that action be taken before a public administration body conducting proceedings.

In order for a summons to be effective it has to contain elements indicated by law, otherwise it will not have consequences for the person it is addressed to. If a person correctly summoned
  • does not appear as a witness or expert without a legitimate reason or
  • unreasonably refuses to give testimony, give an opinion, disclose the details of an inspection or participate in another official activity,

he/she may be fined PLN 50, and in the case of another failure to appear up to PLN 200. The fine is imposed by way of a decision. Such a decision may be appealed against. An appeal may be brought within seven days from the date of the delivery of the decision. In a properly prepared summons the party must be notified of the consequences of non-compliance with the summons.

The second measure that can be used by a person summoned to appear is a motion to declare the absence, refusal to testify, give an opinion or disclose the details of an inspection as justified. Such an application may be submitted within seven days from the date of the receipt of the notification of punishment. A refusal to waive a punishment may be appealed against to a higher authority.

6. Payment of a contractual penalty and the qualifying thereof as a tax-deductible cost

The Tax Office, in an interpretation dated 17 June 2019, stated that the payment of a contractual penalty for a delay in the delivery of goods or a delay in the removal of defects in goods cannot be recognised as a tax-deductible cost. A company that delivers goods after a deadline is also not eligible to make a deduction. The reason for a failure to meet a deadline does not affect the inability to include expenditure on contractual penalties as tax deductible costs.

7. What’s next with bitcoin trading in terms of stamp duty?

Current provisions allow bitcoin and other cryptocurrencies to be traded without having to pay stamp duty until the end of June this year. However, a new draft regulation states that the sale or exchange of bitcoin or other cryptocurrencies will not entail an obligation to pay stamp duty until the end of the calendar year.

Virtual currency trading involves the repeated purchase, sale and exchange thereof. If people were required to pay stamp duty, in many cases it could turn out that the tax is higher than the funds invested, which would undermine the constitutional right to protection of property.

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