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Get the RET right. The tax side of real estate | June 2022

Ministry of Finance suggests more changes to income taxes. Following prior announcements, the draft Act of June 27, 2022 Amending the Corporate Income Tax Act and Selected Other Acts has been published recently. It covers the following:

– Postponement (until the end of 2022) and significant modifications of to the minimum tax regulations, especially a rise in the profitability rate (2%) and a change in the method of its calculation, expansion of the list of exemptions (for small taxpayers, municipal companies, taxpayers in bankruptcy or liquidation, taxpayers whose profitability in one of the past three tax years was above the 2% ratio, and taxpayers that earn most of their income in connection with the provision of healthcare services), and introduction of an alternative method for determining the tax base.

– Revocation of the “hidden dividend” regulations.

– Amendments to provisions concerning the taxation of the so-called “shifted income,” especially clarifications of the criteria indicated in the regulations, and introduction of provisions concerning the determination of the tax base.

– Amendments to the settlements of debt financing costs in tax expenses, i.e. making it clear that taxpayers are obliged to exclude – from the tax-deductible costs – the debt financing costs to the extent in which the excess of debt financing costs goes beyond the higher of PLN 3,000,000 or 30% of EBITDA, and the introduction of exemptions to the application of the regulations in situations where the financier is a bank or credit/savings union based in an EU or EEA member state, and in the case of debt financing granted for the acquisition or subscription of shares (or all rights and obligations) in entities that are not affiliated with the taxpayer.

– Amendments to withholding tax (WHT) regulations, i.e. exemption of the application of certain obligations as regards payments related to treasury securities, and extension of the validity term (until the taxpayer’s tax year) of the payer’s statement precluding the obligation to apply the pay-and-refund mechanism.

– Amendments to the regulations on the Polish holding company, involving the relaxation of the conditions for exemption eligibility, incl. granting the holding company with the right to use the CIT exemption on dividends, exemptions for SEZs and the Polish Investment Zone, waiver of the ban on holding over 5% of shares in another company’s share capital and holding all rights and obligations in a partnership, introduction of a 100% exemption on dividends (currently: 95%) and the obligation to apply the pay-and-refund mechanism, expansion of the scope of the application of the regulations to include the simplified joint-stock company, and clarifications of the regulations (incl. the criterion concerning the holding of shares in a subsidiary for one year).

– Simplification of the procedure for reimbursement of the tax on income from buildings by clarifying that the non-deducted amount of tax on income from building is refundable at the request of the taxpayer (with no need for any decision to be issued in that regard), as long as the request does not give rise to any reasonable doubt. 

– Amendments to regulations on foreign controlled corporations (CFCs), incl. the introduction of provisions eliminating double or multiple taxation of CFCs in the case of a series of dividend payments in holding structures, clarifications of the criterion concerning the profitability of a foreign unit in relation to the assets held in connection with the disposal of assets during the year, and clarifications of the “subsidiary” definition.

The draft act is being discussed. It is scheduled to take effect as of January 01, 2023.

The Ministry of Finance has published draft regulations on the jurisdiction of competent authorities with respect to information on real estate companies in PIT and CIT.

The website of the Government Legislation Center has published draft regulations on the jurisdiction of tax authorities as regards the receipt, handling and transfer (to other competent authorities) of the information referred to in article 45 section 3f of the Personal Income Tax Act and article 27 section 1e of the Corporate Income Tax Act, with respect to real estate companies and shareholders/partners thereof.

According to these regulations, the authority receiving information on the shareholding structure of real estate companies under article 27 section 1e item 1 of the CIT Act / article 45 section 3f of the PIT Act would be:

– the head of the tax office with jurisdiction over the real estate company (if the company is a CIT payer) or the address of the real estate company’s registered office (if the company is not a CIT payer); or

– the head of the Third Mazowiecki Tax Office in Radom – if the real estate company does not have an established registered office address in Poland as of the last day of its tax year or financial year.

Information provided by the shareholders/partners of real estate companies under article 27 section 1e item 2 of the CIT Act / article 45 section 3f item 2 of the PIT Act will instead be sent to:

– the head of the tax office with jurisdiction over the address of the registered office / residence of the taxpayer that is a shareholder/partner of a real estate company (if this taxpayer has a registered office address in Poland); or

– the head of the Third Mazowiecki Tax Office in Radom – in the case of shareholder/partners that are legal entities with no registered office address in Poland; or

– the head of the Third Warszawa-Śródmieście Tax Office – in the case of shareholders/partners who are natural persons with no registered address in Poland.

The draft regulations are being discussed.

The rent for leasing a plant will be regarded as a hidden profit under article 28m section 3, in conjunction with article 28m section 1 item 2 of the CIT Act, and will thus be subject to a fixed-rate tax on the company’s income, according to the advance tax ruling issued on June 07, 2022 by the President of the National Fiscal Information (0111-KDIB1-2.4010.103.2022.4.AK), thus finding the taxpayer’s position to be incorrect.

In yet another advance tax ruling regarding the interpretation of article 28m section 1 item 2 of the CIT Act, the President of the National Fiscal Information stated that the rent paid by the company to a shareholder for the lease of a property (plant) should be categorized as hidden profit, as defined in article 28m section 3 of the CIT Act. In the tax authority’s view, setting the transaction price (the amount of rent) in line with the arm’s length principle does not automatically mean that other applicable criteria listed in article 28m section 3 of the CIT Law have not been met. The authority found it important that the company does not have its own plant, which is necessary for its business operations, and intends to lease the plant from its shareholders, leading to the conclusion that “the company’s shareholders did not equip the company with the assets necessary for its business operations.”

According to the announcements made by the Ministry of Finance, due to numerous interpretation doubts about the application of these provisions, they are supposed to be revoked.

Tax-deductible costs cannot include depreciation/amortization write-offs made after December 31, 2022 with respect to residential units purchased, leased and entered into the records of fixed assets and intangible assets before January 01, 2022, according to the advance tax ruling issued on June 06, 2022 by the President of the National Fiscal Information (0115-KDIT3.4011.417.2022.2.AD).

The tax authority did not share the taxpayer’s opinion that the solution adopted by the lawmaker contradicts the principle of protection of acquired rights and the principle of protection of ongoing interests, arising from the principle of a democratic state and article 2 of the Constitution, thus finding the taxpayer’s position to be incorrect. Consequently, it has been confirmed that after December 31, 2022, taxpayers will lose the ability to categorize depreciation/amortization write-offs as tax deductible-expenses, even if these pertain to incompletely depreciated residential units entered into the fixed asset register before January 01, 2022.

The use of the dividend exemption for dividends paid before 2022 does not rule out the possibility of using the preference option for holding companies, according to the advance tax ruling issued on May 12, 2022 by the President of the National Fiscal Information (0111-KDIB1-3.4010.162.2022.1.IZ).

One of the conditions for using the preferential tax regime for holding companies is (article 24o section 1, in conjunction with article 24m item 1.c of the CIT Act) the non-application of the dividend taxation exemption discussed in article 22 section 4 of the CIT Act. In an advance tax ruling issued by the President of the National Fiscal Information, it was confirmed that the use of the dividend taxation exemption before January 01, 2022, i.e. prior to the effective date of the holding company regulations, does not preclude the possibility of tapping into the exemption from taxation on profits from the sale of shares in a subsidiary. Starting from January 01, 2022, taxpayers have to choose whether they will take advantage of the exemption from taxation on the sale of shares or, alternatively, the exemption from taxation on dividends, as referred to in article 22 section 4 of the CIT Act.

In case the changes announced by the Ministry of Finance come into effect, it is possible that both of the aforesaid preferential option could be applied concurrently.

Need any assistance? Got any questions? Call or e-mail us

Małgorzata Wąsowska
Tax Advisor / Partner / Head of Tax
+48 691 477 047
malgorzata.wasowska@actlegal-bsww.com

Jakub Świetlicki vel Węgorek
Tax Advisor / Senior Associate
+48 505 703 768
jakub.swietlicki@actlegal-bsww.com

Katarzyna Adydan
Tax Advisor / Senior Associate
+48 665 667 110
katarzyna.adydan@actlegal-bsww.com

Szymon Kokot
Tax Advisor / Associate
+48 691 557 507
szymon.kokot@actlegal-bsww.com

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Get the RET right – the tax side of real estate | April – May 2022

On May 12, 2022, the Minister of Health issued a regulation calling off the state of epidemic in Poland, effective as of May 16, 2022. As a result, the exemption from tax on income from buildings ceases to apply as of May 31, 2022 (pursuant to article 38ha of the CIT Act). What this means for CIT taxpayers is the return – starting from June 01, 2022 – of the obligation to calculate the tax on income from buildings for each month and to pay it until the twentieth day of the month following the one for which it is due (the deadline for payment covering June 2022 is July 20, 2022).

In light of the legal status that will come into effect as of January 01, 2023, the costs of leasing a real property from a shareholder will constitute the so-called “disguised dividend,” according to the advance tax ruling issued on April 29, 2022 by the President of the National Fiscal Information (0111-KDIB1-1.4010.94.2022.2.JD).

The case (future event) concerns a company that leases retail and office space from one of its shareholders. The properties were purchased by the shareholder from unrelated parties, and the cost of the lease will not be dependent upon the Company’s profit (or lack thereof) and its value. The President of the National Fiscal Information decided that the new definition of a “disguised dividend” would apply here because the property had been acquired before the Company was established, unless the total sum of the costs incurred by the Company in a financial year, which constitute the disguised dividend, is lower than the gross profit (as defined in accounting regulations) generated in the financial year in which these costs are included in the Company’s financial result.

As a result, the lease-related costs will not be regarded as tax-deductible expenses under the new regulations.

Financial settlements between the parties to a joint venture are not subject to VAT, according to the advance tax ruling issued on May 04, 2022 by the President of the National Fiscal Information (0111-KDIB3- 1.4012.84.2022.1.IK).

The case concerns a transfer of funds resulting from the distribution of profits / coverage of losses between the parties to a joint venture. The parties assume that these activities are technical in nature and do not involve the provision of services or supply of goods. The actions performed as part of the joint venture are primarily aimed at achieving a common goal rather than providing services. The tax authority concluded that in this situation, financial settlements between the parties cannot be treated as the performance of services or supply of goods, and, consequently, they do not constitute activities that are subject to VAT.

“It can be concluded that payments due to the stakeholders are dependent upon the profits generated from the joint venture. Consequently, cash flows resulting from such agreement will not be regarded as payments for the fulfillment of an obligation. This means that such distribution constitutes a technical and accounting action only. There will be no transfer of actual economic control over the goods and no actual performance of services between the parties. It is impossible to identify any financial benefits that would be obtained by each of the parties in relation to the aforesaid settlements. As a result, JV-related settlements between the parties are not subject to VAT,” – concluded the President of the National Fiscal Information.

A lessor that receives a refund of the property tax and perpetual usufruct fee from the lessee should include them together with the rent in a VAT invoice and apply the VAT rate for the lease (the so-called “comprehensive service”), according to the advance tax ruling issued on May 04, 2022 by the President of the National Fiscal Information (0113-KDIPT1 1.4012.184.2022.2.MSU).

The case concerns a taxpayer that leases a warehouse/workshop with office and staff premises. In addition to the rent, the lessee also pays an amount corresponding to the value of the real estate tax and the perpetual usufruct fee. The President of the National Fiscal Information has noted that the perpetual usufruct fee and the real estate tax are directly connected with the lease services, meaning that they are VAT-taxable in the same way as the lease rent.

“Regardless of whether the amount of the real estate tax and the perpetual usufruct fee, returned to the lessor by the lessee, has been included in the rent and constitutes its component, or whether it is separated from the rent, it is always charged to the lessor (…) Consequently, the amounts of the perpetual usufruct fee and the real estate tax constitute the price-generating element of the property lease and are directly connected therewith, meaning that they are subject to VAT in accordance with the rules applicable to the lease services,” – noted the President of the National Fiscal Information.

A VAT invoice cannot be amended/revised in relation to the planned waiver of debt, according to the advance tax ruling issued on May 06, 2022 by the President of the National Fiscal Information (0111-KDIB3-1.4012.234.2022.2.KO).

The case concerns a company which, due to the ongoing armed conflict in Ukraine, is considering the waiver of debt of its Ukrainian partners (at the creditor’s choice and with the debtor’s consent). The President of the National Fiscal Information believes that in this case, the company is not entitled to issue an amended invoice since such waiver cannot be equated with a discount or price reduction.

“The agreement with business partners only concerns the waiver of debt and cannot be regarded as the same as a discount or a price reduction,” – noted the President of the National Fiscal Information.

Receipt of cash due to a partial reduction of a contribution in a limited partnership is categorized as capital gains and is subject to PIT, according to the ruling issued on April 11, 2022 by the Provincial Administrative Court in Gdańsk (case files no. I SA/GD 1700/21).

In the case of a planned return of part of the contribution, resulting from the payment of funds corresponding to the contribution reduction value, PIT-taxable capital gains will emerge for the partner of a limited partnership.

A financial benefit due to the lessor in connection with the relocation, extension, demolition, removal, dismantling or renovation of a building will be subject to VAT, according to the advance tax ruling issued on April 01, 2022 by the President of the National Fiscal Information (0113-KDIPT1 1.4012.80.2022.2.ŻR).

The lessor’s consent for the relocation, reconstruction, demolition, removal, dismantling or renovation of a building/structure in return for a specific fee constitutes a service, as defined in the VAT Act, and is subject to VAT. The tax authority holds that in such case, the payment is, in fact, made for tolerating an act or situation, or for refraining from performing an act. Hence, pursuant to article 106b section 1 of the VAT Act, the lessor is/will be obliged to issue invoices covering this activity.

Need any assistance? Got any questions? Call or e-mail us.

Małgorzata Wąsowska
Certified Tax Advisor / Partner / Head of Tax
+48 691 477 047
malgorzata.wasowska@actlegal-bsww.com

Jakub Świetlicki vel Węgorek
Certified Tax Advisor / Senior Associate
+48 505 703 768
jakub.swietlicki@actlegal-bsww.com

Szymon Kokot
Certified Tax Advisor / Trainee Attorney-at-law / Associate
+48 691 557 507
szymon.kokot@actlegal-bsww.com

Katarzyna Adydan
Certified Tax Advisor / Senior Associate
+48 665 667 110
katarzyna.adydan@actlegal-bsww.com


Get the RET

act BSWW legal & tax recommended in The Legal 500 EMEA 2022

We are pleased to announce that in the latest edition of The Legal 500 ranking act BSWW legal & tax was distinguished in 7 categories:

  • Construction
  • Capital Markets
  • Real Estate
  • White-Collar Crime
  • Dispute Resolution
  • Commercial, Corporate and M&A
  • Banking & Finance

Furthermore, among the recommended lawyers in this year’s edition are: Marek Wojnar, Michał Wielhorski, Jacek Bieniak, Piotr Smołuch, Piotr Wojnar, Marta Kosiedowska, Katarzyna Marzec, Magdalena Banaszczyk-Głowacka, Michał Sołtyszewski, Janusz Szeliński, Sebastian Sury, Alicja Sołtyszewska, Mateusz Prokopiuk, Piotr Pośnik, Marek Miszkiel, Giuseppe La Rosa, Dominika Michalska oraz Piotr Giżyński.

Get the RET right. The tax side of real estate.

Periodic newsletter for the Real Estate sector

It is possible to categorize uncollectible receivables from any type of guarantee issued by a bank (rather than exclusively from loans) as tax-deductible expenses, according to the ruling issued on March 09, 2022 by the Supreme Administrative Court (case files no. II FSK 1553/19).

The Supreme Administrative Court noted that bad debts written off in relation to such guarantees can be recognized as tax-deductible expenses in case the guarantees referred to in article 16 section 1 item 25 c) of the CIT Act are provided not only in connection with a loan, but also for any other purpose. Based on a linguistic interpretation of that provision, the phrase “repayment of loans” refers only to “sureties” and does not apply to “guarantees.”

Repayment of debts secured with a mortgage on a real property directly to the account of the mortgage creditor is regarded as the seller’s income, according to the ruling issued on March 09, 2022 by the Provincial Administrative Court in Gdańsk (case files no. ISA/GD 1062/21).

We cannot rely on the general concept of revenue (i.e. a definite gain) in a case involving disposal for a specific fee because – as specified in article 14 section 1 of the CIT Act, which forms a special provision in relation to article 12 section 1 of the CIT Act and defines the concept of revenue from disposal of items and proprietary rights for a specific fee, the revenue from such disposal corresponds to the value of the item (proprietary right), as expressed by the price specified in the agreement, regardless of the recipient. Consequently, the repayment of mortgage-secured debt to the mortgage creditor is regarded as a gain for the seller of the property.

Loss on the sale of a claim covering a “security deposit” which has not been returned by the contracting party, formerly included in the revenues of the transformed company, may be regarded as tax-deductible expenses of the newly-established private limited liability company, according to the ruling issued on March 08, 2022 by the Supreme Administrative Court (case files no. II FSK 1543/19).

The case concerned the transformation of a sole proprietorship into a private limited liability company. The newly-established company will be entitled to obtain the return of the amount of the security deposit which was retained by the taxpayer’s business partner in order to secure the proper performance of construction works.

The legal predecessor of the private limited liability company recognized the claim as its receivables, meaning that the future event meets the criteria specified in article 16 section 1 item 39 of the CIT Act, according to which tax-deductible expenses do not include “losses on the disposal of claims/receivables for a specific fee, including in the manner specified in article 12 section 1 item 7, except for the claims/receivables or parts thereof which were previously recognized as revenue due – up to the amount formerly recognized as revenue due.” Given the above, a loss resulting from the sale of the aforesaid claims/receivables may be considered as a tax-deductible expense of a sole-shareholder private limited liability company.

Revenue in the form of a free-of-charge benefit emerges upon execution of a suretyship agreement, rather than upon its performance, according to the ruling issued on March 09, 2022 by the Supreme Administrative Court (case files no. II FSK 1615/19).

The company believed that revenues only arise upon performance of a suretyship agreement. However, according to the court, revenues in the form of a free-of-charge benefit emerge earlier, i.e. upon execution of such agreement. Moreover, the court did not share the company’s position that it is not possible to establish the value of the benefit in question, and that there are no regulations which could be used to determine that value. Pursuant to the CIT Act, “the value of in-kind benefits, incl. unpaid ones, is determined on the basis of market prices used for performance of services or provision of items/rights of the same type and category, taking into account their condition, degree of wear, and the time/place.” In the case at hand, the amount and conditions of the loan are clear, which means that there should be no difficulty in establishing the value of remuneration for the surety with respect to a specific borrower and the loan obtained by that borrower.

It is possible to amend the VAT amount incorrectly included in an invoice that allegedly covers non-existent operations if the tax authority has ultimately denied the invoice recipient’s right to deduct VAT, according to the verbal statement of reasons to the ruling issued on March 09, 2022 by the Provincial Administrative Court in Łódź.

The Provincial Administrative Court has decided that if the tax authority denied the recipient of a “fake invoice” the right to deduct input VAT resulting from such invoice, the risk of loss of tax revenues related to the deduction ceased to exist. Consequently, the tax authority cannot refuse the option to amend VAT that was incorrectly specified in the invoice – this goes beyond the prevention of the tax revenue losses because there is no longer any possibility of such losses.

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    Need any assistance? Got any questions? Call or e-mail us

    Małgorzata Wąsowska
    Tax Advisor / Partner / Head of Tax
    +48 691 477 047
    malgorzata.wasowska@actlegal-bsww.com

    Jakub Świetlicki vel Węgorek
    Tax Advisor / Senior Associate
    +48 505 703 768
    jakub.swietlicki@actlegal-bsww.com

    Szymon Kokot
    Tax Advisor / Trainee Attorney-at-law / Associate
    +48 691 557 507
    szymon.kokot@actlegal-bsww.com

    act BSWW legal & tax advises Adventum on acquisition of Sky Tower for over EUR 84 m

    act BSWW legal & tax represented the buyer in the acquisition of an office, retail and residential complex in Wrocław, with a total area of over 171,000 sqm, from Sky Tower S.A., member of Develia Group.

    Our services included a full range of transaction advisory, including due diligence, preparation of transactional documentation and support during negotiations. The law firm also guided the client throughout the financing acquisition process.

    The project team was led by Marta Kosiedowska (Partner) and Marek Wojnar (Managing Partner), supported by Katarzyna Marzec (Partner).

    As regards the acquisition of financing, the client was advised by Marta Kosiedowska (Partner), supported by Mariusz Grochowski (Senior Associate).

    This is yet another property acquired by Adventum over the recent time, and we are more than glad to be able to assist the client at each subsequent stage of its growth. In October, we had the opportunity to advise Adventum on the acquisition of the Mercedes-Benz building in Warsaw, said Marek Wojnar.

    Adventum is definitely growth-oriented, as can be seen from their recent acquisitions. Sky Tower boasts a huge potential and perfectly fits into our client’s development strategy. – noted Marta Kosiedowska.

    Adventum Group is a boutique investment fund management company focused on Central European real estate investment projects. The group has thus far completed projects with a total value of over EUR 1.5bn in the CEE region.

    Sky Tower is one of Poland’s highest developments (212 meters and 50 floors). Apart from over 30,500 m² of leasable office space, the project covers commercial space (25,000 m²), luxury apartments, comprehensive leisure facilities, and a multi-level underground car park.

    The seller and the financing banks were advised by Dentons.

    The real estate team at act BSWW legal & tax is one of the biggest among Polish law firms. Our practitioners advise on all types of real estate projects, with a strong focus on large development, retail and office projects. They act for a wide range of international, domestic and regional clients, including developers, property owners, asset managers, investors, lessors and lessees.

    act BSWW legal & tax advises Uno Capital on joint venture real estate project

    act BSWW legal & tax advised Uno Capital in a transaction involving the establishment of a joint venture entity and the transfer of a real estate title to it with a view to implementing a prestigious residential project in a resort town in the south of Poland.

    The law firm supported the client throughout the process of setting up the new JV entity with a local partner, and transferring the title to the property intended for the development project.

    The project team was led by Marek Wojnar (Managing Partner), and included Magdalena Banaszczyk-Głowacka (Partner) and Edyta Maciążek (Senior Associate).

    Uno Capital is a fund established in 2010, investing predominantly in companies from the FMCG sector, new technologies and medical services.

    act BSWW legal & tax advises leading Polish and foreign corporations and investment companies on commercial law and capital transactions. As a co-founder of act legal, an alliance of leading independent law firms, it participates in cross-border projects led by international groups of experts advising on commercial and corporate matters.

    act BSWW legal & tax advises STRABAG Real Estate on sale of real estate in Łódź

    Due to its rapid growth and a range of large new projects, STRABAG Real Estate is selling selected smaller assets. One of such transactions is the sale of an investment property in Łódź.

    The law firm provided transactional advice throughout the sale process.

    “STRABAG Real Estate’s project portfolio keeps expanding. Apart from assistance in acquisition projects, we are happy to have been given the opportunity to support our client in a disinvestment transaction once again,” says Marek Wojnar.

    The project team was led by Marek Wojnar, Managing Partner, and Magdalena Banaszczyk-Głowacka, Partner.

    The real estate team at act BSWW legal & tax is one of the biggest among Polish law firms. Our practitioners advise on all types of real estate projects, with a strong focus on large development, retail and office projects. They act for a wide range of international, domestic and regional clients, including developers, property owners, asset managers, investors, lessors and lessees.