Month: May 2025

What does the anti-inflation shield cover?

The anti-inflation shield primarily includes:

VAT reductions:

• 0% VAT on food previously taxed at 5%,
• 0% VAT on fertilisers, plant protection products, and other agricultural production aids instead of 8%,
• 0% VAT on natural gas instead of 23%,
• 5% VAT on electricity and heat instead of 23%,
• 8% VAT on motor fuels instead of 23%,

Excise duty reductions:

• reduction to the minimum excise duty on motor fuels, light heating oil, and electricity,
• exemption from excise duty on electricity sales to households,
• exemption of motor fuel sales from the retail sales tax,
• shield allowance for households.

The Ministry of Finance reminds on the government website that the VAT reduction applies to motor fuels, i.e., diesel oil, biocomponents constituting standalone fuels, petrol, and liquefied petroleum gas (LPG) used to power motor vehicles, which are covered by excise duty preferences under the government anti-inflation shield.

The support under Shield 2.0 also covers electricity sales, including at fuel stations for charging electric vehicles. According to the EU VAT Committee guidelines of 1 December 2021, such transactions are treated as supplies of goods, and thus as supplies of electricity subject to the reduced VAT rate.

The rate change also applies to food sales, where a zero VAT rate has been introduced for basic food products currently subject to a 5% rate, including:

• meat and fish and their products;
• dairy products;
• vegetables and fruit and their products;
• grains, milling industry products, grain products, and bakery goods;
• certain drinks (e.g., those containing at least 20% fruit or vegetable juice, dairy drinks, and so-called plant-based milks).

Offer: Antitrust law – legal adviser

Entrepreneurs’ information obligations related to the anti-inflation shield

With the entry into force of Shield 2.0, entrepreneurs must also display clear information in shops or at fuel stations (by the cash register) that VAT rates have been reduced for these goods. For sellers of natural gas, electricity, and heat, this information must be attached to invoices or other documents evidencing payment for these goods.

The Ministry of Finance has prepared a template for the information sellers must display at cash registers when selling goods for which Shield 2.0 reduces VAT rates. The templates are available on the government website: Anti-inflation shield – information template and scope – Ministry of Finance – Gov.pl portal

The method of acquiring cryptocurrencies via the “Proof of Work” method, also known as virtual currency “mining,” is a popular yet energy-intensive way of obtaining cryptocurrency. It uses devices with high computing power, usually based on powerful graphics cards (GPUs). The entire process involves significant energy consumption and expenses on devices known as “miners.” Taxpayers engaged in such activities are primarily interested in the possibility of including these costs as tax-deductible expenses related to income from the sale of virtual currency (Article 22(14) of the Personal Income Tax Act). While acquiring currency, for example on an online exchange, usually presents no major issues—costs being mostly limited to transaction fees—the situation with mining is more complex. Unfortunately, individual tax rulings in this area are highly inconsistent, and the tax authority’s stance contradicts administrative court rulings.

Also read: Who is entitled to the settlement bonus?

Mining costs and taxes

The above was demonstrated by the addressee of an individual tax ruling issued on 30 August 2022 (ref. 0114-KDIP3-1.4011.656.2022.1.PZ). The applicant mined virtual currencies using electronic devices (including GPU graphics cards). The acquisition and sale of currencies were conducted outside business activity and exclusively on the applicant’s own account. The taxpayer asked in the ruling whether the “expenses directly incurred on the acquisition of virtual currency,” as referred to in Article 22(14) of the Personal Income Tax Act, should also include expenses related to mining virtual currency, such as the purchase of mining equipment and electricity consumption for that purpose.

The applicant argued in favour of recognising these costs as deductible expenses. They cited the ruling of the Regional Administrative Court (WSA) in Łódź of 19 November 2019, I SA/Łd 411/19, where the court distinguished between primary and secondary acquisition of cryptocurrency. The court held that primary acquisition consists precisely of mining bitcoins, which constitutes “production” of virtual currency, yet remains acquisition. Therefore, expenses incurred on acquisition (i.e., purchase of mining equipment and electricity) should be considered as directly incurred under Article 22(14) of the Act. Without purchasing appropriate mining equipment and electricity, mining by the Proof of Work method chosen by the applicant would be impossible. To support this position, the taxpayer also cited the WSA ruling in Łódź dated 21 July 2020, ref. I SA/Łd 285/20.

The tax authority’s position – electricity and mining equipment costs are not deductible expenses

The Director of the National Tax Information (Dyrektor Krajowej Informacji Skarbowej) disagreed with the applicant. It was pointed out that in the case of income from the sale of virtual currency obtained through so-called “mining,” expenses incurred on the purchase of equipment and electricity cannot be considered as expenses directly incurred on the acquisition of virtual currency under Article 22(14) of the Personal Income Tax Act, as these expenses are classified as indirect costs.

The authority argued that the mined virtual currency had never previously been subject to trading because it did not exist before mining. According to the tax office, if the legislator had intended taxpayers to be able to deduct all costs related to any form of obtaining virtual currency, the law would explicitly state this (for example, in the case of costs related to the sale of real estate, Article 22(6c) of the Personal Income Tax Act includes provisions on both acquisition and production costs). The authority considered that expenses on electricity, mining rigs, or renting premises for their installation may at most be connected with the taxpayer’s activity and generally contribute to income generation. However, the Director of the National Tax Information stated it is impossible to determine which specific income a given expense directly serves.

As can be seen, despite the generally favourable rulings of administrative courts for taxpayers, the tax authority continues to hinder virtual currency users. When planning investments in the cryptocurrency sector, it is worth considering the content of the latest individual rulings issued by the Director of National Tax Information in this regard to make an informed decision about primary or secondary acquisition of assets or to prepare for potential legal disputes. ATL Law offers its clients support in solving tax law issues, including preparing analyses, applications for individual rulings, and representation before administrative courts. We invite you to review our offer.

Offer: Tax Advisory Warsaw

On 29 July, the Regulation of the Minister of Family and Social Policy on Work Permits and Declarations of Entrusting Work to a Foreigner (Journal of Laws of 2022, item 1558) came into force, repealing the previous regulation governing this matter. The changes in employing foreigners concern both procedures and documentation requirements. Some provisions have been clarified, including the controversial practice of attaching the same information from the district governor (starosta) to multiple applications for work permits for foreigners.

The main changes concerning the list of documents currently required in the procedures (§ 9 of the regulation) include:

1. Removal of the obligation to attach a copy of the employer’s ID card or other identity document due to the introduction of a general regulation regarding verification of the identity of the entity entrusting work to a foreigner;
2. Clarification that the district governor’s information with a specified identification number may be attached only to one application for a work permit or seasonal work permit;
3. Inclusion in the payment receipt description of the foreigner’s personal data to whom the application pertains, preventing the multiple use of one payment receipt for several applications;
4. Removal of provisions allowing submission of one copy of certain documents when the entity submits applications for more than one foreigner simultaneously;
5. Specification that documents drafted in a foreign language must be submitted together with their translation into Polish by a sworn translator registered on the list maintained by the Minister of Justice.

Note that these changes do not apply to proceedings commenced but not concluded before 29 July 2022.
 

Application for a work permit for a foreigner

As with the previously applicable regulations, the regulation states that the application for a work permit or seasonal work permit may be submitted in paper or electronic form. However, it has been clarified that electronic applications must be submitted exclusively via the IT system referred to in Article 4(1)(8) of the Employment Promotion Act (available at www.praca.gov.pl). This means that employers will no longer be able to submit electronic applications via the administrative authority’s electronic inbox. Use of the application system will be mandatory.

Changes regarding reports on applied payment terms

• Exclusion from the reporting obligation of companies forming tax capital groups, as well as public healthcare entities and healthcare entities in the form of capital companies established and managed by the State Treasury or local government units (entity exemptions);
• Exclusion from the reporting obligation of monetary amounts resulting from commercial transactions carried out in the scope of insurance and reinsurance activities, as well as the value of time-barred claims (subject exemptions);
• Clarification of the reporting obligation for taxpayers other than tax capital groups whose revenue in the tax year exceeded the equivalent of EUR 50 million, converted to PLN at the average euro exchange rate announced by the National Bank of Poland on the last working day of the calendar year preceding the year in which individual taxpayer data is made public;
• Extension of the deadline for submitting reports – from 31 January to 30 April each year – and introduction of the obligation for the minister responsible for the economy to publish a consolidated summary of reports by 31 August each year;
• Clarification of the content of the report – it will be necessary to report the value of monetary amounts received or fulfilled within the contractual payment term (or if the contractual term is inconsistent with the statutory term – within the maximum statutory term), instead of reporting amounts fulfilled and received counted from the invoice date. Additionally, for amounts fulfilled and received within the contractual term, only the total value will need to be reported without time-range breakdown. In contrast, values of monetary amounts not received or fulfilled within the contractual term must be reported within time intervals, indicating the delay period starting from the expiry of the contractual term;
• Enabling conversion of monetary amounts expressed in foreign currency into Polish zlotys according to the accounting principles adopted by the entity;
• Introduction of rules regarding the submission of corrections to reports;
• Clarification of the status of the entity obliged to submit the report (assigning responsibility for report submission to a duly defined manager).

Changes regarding proceedings on excessive delays in fulfilling monetary obligations

• Exclusion of delays in fulfilling monetary obligations within capital groups and transactions related to insurance and reinsurance activities from proceedings before the President of UOKiK;
• Clarification of the definition of excessive delay in fulfilling monetary obligations;
• Clarification of the legal nature of probability analysis and the principles for the minister responsible for the economy to submit reports on applied payment terms to the President of UOKiK;
• Introduction of so-called “soft calls” (without sanctions) at the disposal of the President of UOKiK;
• Exclusion of the application of Article 74 of the Act on Competition and Consumer Protection (which requires the President of UOKiK to consider only such allegations that the party could respond to);
• Changes regarding the amount, deadlines, and grounds for waiving penalties, including granting the President of UOKiK greater discretion.

Other changes

• Introduction of a one-time obligation to submit a statement on holding, obtaining, or losing the status of a large entrepreneur. Relevant entities will submit one of three types of statements depending on their status;
• Empowering executive agencies not to seek compensation. This aims to minimise situations where costs incurred by the agency in pursuing compensation exceed the amount claimed;
• Introduction of ineffectiveness of contractual clauses excluding or limiting the creditor’s right to assign receivables in overdue commercial transactions where the creditor is a small or medium-sized enterprise and the debtor is a large enterprise;
• Clarification of provisions regarding the exclusion of the application of the Act on counteracting excessive delays in commercial transactions to debts subject to restructuring or bankruptcy proceedings;
• Repeal of Article 15r1 of the so-called anti-COVID law, which excluded the possibility for contracting authorities to deduct contractual penalties stipulated for non-performance or improper performance of contracts from the contractor’s remuneration or other receivables, as well as the possibility to seek satisfaction from contract performance security.

Transitional provisions provide, among others, that commercial transactions concluded before the entry into force of the amendment shall be subject to the existing provisions. The draft assumes that the provisions will enter into force within 14 days of their promulgation, and is currently at the parliamentary stage.

Statutory interest for delay in commercial transactions 2022/2023

The changes do not modify the current rules for determining the statutory interest rate for delays in commercial transactions. The current statutory interest rate for delays in commercial transactions remains equal to the sum of the NBP reference rate plus ten percentage points as of July. Until 31 December 2022, due to the July NBP reference rate being 6%, the statutory interest for delay in commercial transactions amounts to 16%. Exceptionally, for debtors who are public entities being healthcare entities, the interest rate equals the NBP reference rate plus 8 percentage points (currently 14%). Due to further interest rate hikes since July 2022, the statutory interest rate for delays in commercial transactions in 2023 may reach approximately 17% or higher.

If you are struggling with delayed payments from contractors, unsure whether the creditor has correctly calculated interest, or require legal support to enforce claims or challenge unjustified demands – ATL LAW specialists, Anna Błaszak, Legal Adviser’s Office, remain at your disposal. We invite you to explore our legal services offer, including in the field of commercial law.

Wages in the European Union

The directive does not establish a single, common minimum wage rate for all Member States. Due to differences in employment conditions and living costs between individual EU countries, it would be impractical to set an average amount applicable to every country. The gap between the highest and lowest monthly minimum wage in the EU currently amounts to almost €2,000. The highest applies in Luxembourg, and the lowest in Bulgaria. Therefore, the directive provides only certain guidelines intended to streamline the procedure for setting the minimum wage and adapting it to the economic conditions prevailing in each country.

Collective agreements

 
The directive indicates that Member States where collective agreements cover less than 80% of employees should adopt measures aimed at strengthening such collective bargaining. Member States where the coverage of collective bargaining does not exceed the 80% threshold should provide frameworks to facilitate collective bargaining and establish action plans to promote collective negotiations. While there is currently no obligation for Member States to conclude collective agreements, considering the direction of EU legislation, this may not be ruled out in the near future. Under the directive, Member States below the indicated threshold should implement a specific action plan aimed at increasing the share of collective bargaining. Furthermore, they are required to update this plan every five years and submit these updates to the European Commission. The coming six months will show how these guidelines will be implemented within Polish legislation.

Minimum wage in the European Union

It is currently unclear how the directive will be implemented within Polish law. The current minimum wage amount (PLN 3,010) will remain unchanged until the end of 2022. The minimum wage from 1 January 2023 will be PLN 3,490 gross, an increase of PLN 480 compared to the current rate.
If you have any doubts regarding the upcoming regulations or wish to minimise the risk of adverse consequences from inspections by the State Labour Inspectorate or the Social Insurance Institution, we invite you to use the services of our law firm. ATL Law lawyers provide employers with comprehensive legal assistance in all areas related to human resources management and labour law. Our support includes legal advice tailored to the specific needs of your company, covering all aspects important from a business perspective and ensuring legal security. We invite you to explore our offer.

On 13 October 2022, one of the largest changes to date in the Commercial Companies Code (hereinafter: CCC) will come into effect. The amendment introduces the concept of a so-called holding (group of companies) into Polish legislation, which regulates private-law relations between the parent company and its subsidiaries, taking into account the interests of creditors, members of governing bodies, and minority shareholders of the subsidiary. The Act will also grant new powers to supervisory boards, aimed at more effective corporate governance.

Holding – what is it?

The amendment defines the concept of a holding (or group of companies) as –

“A parent company and a subsidiary participating in a group of companies shall act in the interest of the group of companies alongside the interest of the company, provided this does not harm the creditors or minority shareholders of the subsidiary.”

A holding thus means a full form of association/co-organisation of related companies. The Act assumes that a distinction should be made between a “group of companies” (which is essentially the addressee of the legal regulation known as holding law) and the relationship of domination and dependency between companies referred to in Article 4 § 1 point 4 of the CCC. A group of companies is a “qualified” relationship of domination and dependency between certain companies forming the group, as these companies pursue a common business strategy justifying the parent company’s exercise of unified management over one or more subsidiaries.
Also read: Tax form PIT-11 from a bailiff – how to settle?

Binding instructions for subsidiaries

The most significant of the introduced changes will be the enabling of the parent company to issue binding instructions to the subsidiary regarding the management of company affairs, if justified by the interest of the group of companies and provided that special provisions do not state otherwise. A binding instruction must be issued in writing or electronically under pain of nullity. The mere issuance of an instruction does not yet authorise the subsidiary to implement it. The execution of the binding instruction by a subsidiary participating in the group of companies requires a prior resolution of the subsidiary’s management board.
According to the Act, a binding instruction must specify at least:

1. the behaviour expected by the parent company from the subsidiary in connection with the execution of the binding instruction;
2. the interest of the group of companies justifying the execution of the binding instruction by the subsidiary;
3. the expected benefits or harms to the subsidiary that will result from executing the binding instruction, if any;
4. the anticipated manner and deadline for compensation to the subsidiary for any damage incurred as a result of executing the binding instruction.

The Act provides for liability of the parent company for the consequences of issuing a binding instruction subsequently carried out by a subsidiary within the group of companies. The parent company will be liable towards:

1. the subsidiary,
2. creditors of the subsidiary,
3. minority shareholders of the subsidiary.

To enable the parent company to effectively manage the group of companies – alongside binding instructions – the Act introduces:

1. the right of the parent company to access information about subsidiaries. This explicit regulation is necessary in cases where the subsidiary is a joint-stock company. Otherwise, such a broad scope of information access by the parent company, as a shareholder in the subsidiary, would be excluded under Article 428 of the CCC,
2. the right of the parent company’s supervisory board to exercise ongoing supervision over subsidiaries within the group, but only in respect of protecting the interest of the group of companies,
3. the right to compulsory purchase of shares or stocks held by minority shareholders in the subsidiary, so-called squeeze-out.

Commercial Companies Law – changes:

Other proposed changes to the Commercial Companies Code mainly include:

• an obligation for management boards to provide certain information about the company to the supervisory board on their own initiative;
• clarification of the supervisory board’s right to demand preparation or provision of information, documents, reports, or explanations;
• the right to appoint an advisor to the supervisory board without management board involvement;
• approval of significant-value transactions with the parent company, subsidiary, or affiliated company;
• regulation of terms of office and mandate of management bodies;
• introduction of a duty of loyalty and confidentiality even after the supervisory board member’s term has ended;
• introduction of the Business Judgement Rule into the CCC provisions;
• extension of Article 203 § 3 and Article 370 § 3 of the CCC to include other cases of mandate termination;
• regulatory provisions – extending the obligation to record minutes for resolutions adopted via remote communication means and specifying voting majorities for supervisory board resolutions in limited liability companies.

Legal services in commercial and corporate law are a core area of ATL Law’s practice. The legal solutions proposed by the ATL Law team help clients achieve their business goals and objectives. We safeguard the interests of companies, management board members, shareholders, and stakeholders. We minimise the risk of disputes. We have experience working with entities operating in various economic sectors. We invite you to explore our offer: Commercial Law.

Whistleblower Protection – Draft Act

The legislative agenda of the Council of Ministers includes a new version (dated 4 August 2022) of the draft so-called Whistleblower Protection Act, i.e. the Act on the Protection of Persons Reporting Legal Violations. The aim of its adoption is to implement Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (OJ EU L 305, 26.11.2019, p. 17) into Polish law. The deadline for transposing the Directive into the legal systems of Member States expired almost a year ago, on 17 December 2021. The European Commission has issued opinions to some EU countries requesting clarification on this matter. The amendment will impose an obligation on entrepreneurs to implement a special protection system for so-called whistleblowers – persons who report or publicly disclose information about breaches of the law obtained in a work-related context.
Offer: Labour Law Advisory Services

Whistleblower Protection – Who Does It Concern?

Recall that the obligation to introduce an internal reporting procedure will apply to private entities for which at least 50 people perform work. Exceptions apply to private entities operating in the fields of financial services, products and markets, anti-money laundering and counter-terrorism financing, as well as transport security and environmental protection. Entities operating in these fields will be required to implement the procedure regardless of the number of employees. However, the drafters envisage varying levels of statutory obligations depending on the number of employees. Private entities employing between 50 and fewer than 250 persons must establish internal procedures by 17 December 2023. Entities employing more than 250 persons, or providing the aforementioned services, will need to comply within two months from the entry into force of the amendment.

Who is a Whistleblower under the Act?

The new version of the draft expands the statutory definition of a person reporting violations. Article 4 provides that the Act applies to a natural person who reports or publicly discloses information about a breach of law obtained in a work-related context, including:

1. an employee,
2. a temporary worker,
3. a person performing work other than under an employment relationship, including under a civil law contract,
4. an entrepreneur,
5. a shareholder or partner,
6. a member of a governing body of a legal person or organisational unit without legal personality,
7. a person working under the supervision and direction of a contractor, subcontractor, or supplier, including under a civil law contract,
8. an intern,
9. a volunteer,
10. a trainee,
11. a law enforcement officer as defined in Article 1(1) of the Act of 18 February 1994 on pension provision for Police officers, the Internal Security Agency, the Intelligence Agency, the Military Counterintelligence Service, the Military Intelligence Service, the Central Anti-Corruption Bureau, the Border Guard, the Marshal’s Guard, the State Protection Service, the State Fire Service, the Customs and Tax Service, and the Prison Service, as well as their families,
12. a professional soldier as defined in Article 2(39) of the Act of 11 March 2022 on Homeland Defence,

What Violations May Whistleblowers Report?

According to Article 3 of the draft, a breach is any action or omission contrary to the law or aimed at circumventing the law relating to:

1. public procurement;
2. financial services, products and markets;
3. anti-money laundering and counter-terrorism financing;
4. product safety and compliance;
5. transport safety;
6. environmental protection;
7. radiological protection and nuclear safety;
8. food and feed safety;
9. animal health and welfare;
10. public health;
11. consumer protection;
12. privacy and personal data protection;
13. security of network and information systems;
14. the financial interests of the European Union;
15. the EU internal market, including competition rules, state aid, and corporate taxation.

A legal entity may additionally establish the reporting of violations concerning internal regulations or ethical standards adopted by that entity under generally applicable law and consistent with it.

Anonymous Reports

The drafters have decided not to introduce the possibility of anonymous internal or external reporting. According to the draft’s justification, this decision is based on practical considerations such as the risk of excessive influence from incidental or low-value information with little actual impact on preventing violations, and difficulties in obtaining additional information from the reporter when initial information is incomplete but significant. Anonymous reports could also complicate proving the connection between the information provided and the reporter in any proceedings. Other reasons include the costs and organisational burden of processing numerous potentially worthless reports within established reporting mechanisms.
This means that for an effective report, the reporting person must provide identifying information allowing contact. Anonymous reports will not be subject to the Act’s requirements and may be disregarded, including those submitted to the Ombudsman. While anonymous reporting is not excluded entirely, should an entity choose to allow anonymous reports, it must include appropriate provisions in its internal reporting procedure.

Personal Data Processing

Compared to previous versions, the provision regarding the obligation to promptly delete personal data after processing by an external entity authorised to receive reports has been amended. According to the new wording of Article 28(1), the issue of data deletion will be agreed upon in the contract between the data controller and the external entity authorised to receive reports.

Whistleblower Protection – Employer Obligations

We have already informed on the firm’s website about the upcoming obligations for employers under the forthcoming amendment. The most important include the prohibition of retaliation against whistleblowers and the requirement to establish an internal procedure for handling reports of violations.

Prohibition of Retaliation against Whistleblowers

The primary employer obligation is negative in nature. Pursuant to Article 10 of the Act, an employer may not undertake retaliatory measures against a whistleblower who reports a violation. Such measures are defined as direct or indirect actions or omissions caused by the report or public disclosure, which infringe or may infringe the reporter’s rights or cause or may cause harm to the reporter.
According to Article 11, if the work is or is to be performed under an employment relationship, the reporter must not be treated detrimentally because of their report or public disclosure.

Detrimental treatment, in particular, includes:

1. refusal to establish an employment relationship,
2. termination or dismissal without notice,
3. failure to conclude a fixed-term employment contract after a probationary contract, failure to conclude a subsequent fixed-term or indefinite contract if the employee had a justified expectation of such a contract,
4. reduction of remuneration,
5. withholding or omission of promotion,
6. withholding other employment-related benefits,
7. transfer to a lower position,
8. suspension from duties,
9. assignment of duties to another employee,
10. unfavourable change of work location or working hours,
11. negative performance assessment or work opinion,
12. disciplinary measures, including fines or similar penalties,
13. exclusion or omission from training opportunities to improve qualifications,
14. unjustified referral to medical examinations, including psychiatric exams, where allowed by separate provisions,
15. actions aimed at hindering future employment in a given sector or industry based on informal or formal sectoral or industry agreements.

Threats or attempts to apply these measures also constitute detrimental treatment, unless the employer proves objective reasons for their actions.

Internal Reporting Procedure

The internal reporting procedure must specify:

1. the internal organisational unit or person within the entity’s structure, or an external entity authorised to receive reports;
2. methods for submitting reports, including the reporter’s correspondence or email address (“contact address”);
3. an impartial internal organisational unit or person authorised to undertake follow-up actions, including verifying the report and further communication with the reporter, possibly the same unit/person as in point 1, if impartiality is ensured;
4. the obligation to confirm receipt of the report within 7 days, unless the reporter does not provide a contact address for confirmation;
5. the obligation to take follow-up actions diligently by the unit/person from point 3;
6. a maximum deadline for providing feedback to the reporter, not exceeding 3 months from confirmation or, if no confirmation is sent, 3 months from 7 days after the report, unless no contact address is given;
7. a system of incentives to encourage use of the internal procedure where the breach can be effectively addressed internally and no risk of retaliation exists;
8. clear and easily accessible information on external reporting to the Ombudsman or public authorities, and where relevant, EU institutions or bodies.

The internal procedure may include additional elements, such as identifying risk factors related to the entity’s activities that could lead to breaches, particularly regulatory or corruption risks. Whistleblowers will also have the right to make external reports regardless of the internal procedure, addressed to the Ombudsman and public authorities.
We will keep you updated on further developments in the legislative process. Due to pressure from the European Commission, the process is expected to proceed quite rapidly. It is therefore advisable to begin organising an appropriate internal reporting procedure and compliance with the rest of the forthcoming amendment now. Please feel free to contact the experts at ATL LAW Anna Błaszak Legal Adviser’s Office. ATL LAW lawyers provide comprehensive legal assistance to employers in all areas related to human resources management and labour law. We deliver tailor-made solutions covering all aspects relevant to your company’s business goals and operational specifics, ensuring legal security.

Implementation of the EU Directive

Last week, on 6 October, the Polish parliament adopted an amendment to the Act on the National Court Register. The Act constitutes the first stage of implementing the so-called company law package, which includes partial implementation of EU Directive 2019/1151. The Directive aims to introduce the possibility of establishing certain types of companies (with regard to Poland – limited liability companies) and branches of foreign entrepreneurs via the Internet, and to introduce facilitation measures (including translations and templates) to simplify the process of forming and registering these companies as well as registering branches, and also to enable online submission of changes to data concerning these entities. The Directive also provides for the extension of the scope of company data freely available via the register integration system, which is intended to enhance transparency and legal certainty in the single market. The provisions also include solutions intended to relieve companies from the obligation to submit/publish the same documents/information in multiple registers (the “once-only” principle). This article presents the key changes introduced by the amendment implementing the Directive, as set out in the justification of the Act.

Submission of documents to the National Court Register – what will change?

With regard to facilitation for foreign entrepreneurs in registering and submitting documents to the National Court Register (KRS), the Act provides for the publication in the Public Information Bulletin, at least in Polish and in another official EU language, of templates of agreements, information on company registration rules, branch registration rules, rules of representation, and rules on referencing information in the register (added Article 3b of the Act on the National Court Register). Furthermore, concerning limited liability companies in organisation, the Act enables settlement of payments for shares using a payment service via internet connection (added Article 163 of the Commercial Companies Code).

As part of the extension of the scope of company data freely available via the register integration system, the draft introduces an amendment to Article 4a(1) of the Act on the National Court Register by supplementing the range of data made available through the integration system with a unique European identifier, and in the case of companies that have established branches in another EU Member State or a state party to the Agreement on the European Economic Area, also the unique European identifier of the branch, the branch’s registration number, and the designation of the Member State in which the branch is registered.

Submission of documents to the KRS and persons without a PESEL number

The EU Directive introduces a requirement to include in the information exchange between registers of EU (EEA) Member States via the register integration system the date of birth or the national identification number of persons forming the management or supervisory bodies of the parent company. Accordingly, the Act provides changes regarding the entry of the date of birth in the National Court Register for natural persons without a PESEL number. In cases where the information received from the register integration system contains a national identification number instead of a date of birth (i.e., an identification number other than PESEL, equivalent to PESEL in another Member State), that number will be entered into the register. The lack of uniformity in this regard results from differences in methods of identifying natural persons in registers of EU (EEA) Member States. The Act also provides for entering the date of birth (for persons not required to have a PESEL number) also in the case of entities not covered by the register integration system.

The Act will enter into force on 1 December 2022, meaning that the new procedures will apply to submission of documents to the KRS already in 2022.

Submission of documents to the KRS 2022–2023

If you require information regarding registration proceedings, wish to register a company or its foreign branch, or need other corporate law services, please contact us. Providing legal services in corporate and company law is one of the main areas of activity of ATL Law. The legal solutions offered by the ATL Law team allow clients to achieve their set goals and business objectives. We protect the interests of companies, board members, partners, and shareholders. We minimise the risk of disputes. We have experience working with entities operating in various sectors of the economy. We provide:

• advice on the functioning of all types of commercial companies and other business entities;
• assistance in establishing and registering companies, including drafting agreements, statutes, and rules of procedure for supervisory boards and management boards;
• ongoing corporate service for companies, including preparing draft resolutions of company bodies;
• organisation and conducting (general) shareholders’ meetings as well as supervisory board and management board meetings;
• representation of our clients in registration proceedings and other proceedings related to the operation of commercial companies.

We invite you to review our offer.

Offer: Commercial law (Warsaw, Kraków, Katowice)

The issue of granting interest-free loans still raises significant doubts among taxpayers. While the payment of the civil law transaction tax (PCC) is clear for the parties to loan agreements – in principle, a loan is subject to taxation at a rate of 0.5% of the loan value, payable by the borrower – the question of income tax raises more problems. This is hardly surprising given the previous significant discrepancies in case law and the tax authorities’ positions. What is the latest view of the tax authorities regarding the granting of an interest-free loan? Does such a loan generate income and who is obliged to pay any potential tax? Guidance on this matter is provided by an individual interpretation issued by the Director of the National Tax Information on 2 September 2022.

Facts of the case

The applicant, together with his wife, concluded a long-term interest-free loan agreement for the amount of 300,000.00 PLN with an unrelated person. According to the terms of the agreement, the loan was to be repaid in 200 instalments, with the final repayment date set for 2039. Neither party to the loan agreement was conducting business activity. The loan amount was paid into the borrower’s account within 3 days of signing the agreement, i.e. by 2 July 2022. The loan was granted without any remuneration for the lender for providing the capital and was reported to the relevant head of the tax office. The civil law transaction tax was paid.
The applicant asked the National Tax Information whether the interest-free loan, concluded under the above conditions, does not cause the creation of a gratuitous benefit and whether it would not require payment of income tax on interest unpaid to the lender. According to the applicant, the interest-free loan did not generate income on his part from gratuitous benefit. Therefore, the applicant should not be obliged to pay personal income tax.

Interest-free loan and income tax

The answer to the applicant’s question is not obvious. Both the tax authorities and the courts have over the years made many conflicting assessments regarding the generation of income by interest-free loans. One of the less favourable rulings for taxpayers was the judgment of the Voivodeship Administrative Court in Kraków of 4 June 2009, case no. I SA/Kr 959/08, where the court fully supported the then position of the tax authorities. The court stated that an interest-free loan leads to the creation of a gratuitous benefit within the meaning of Article 11 of the Personal Income Tax Act. According to the court, the gratuitous loan generated income equal to the interest that the taxpayer would have had to pay if they had taken out a loan on commercial terms. The tax authorities established the above income based on the average interest rate, calculated from data from several banks.
If this position were still valid, granting interest-free loans would be extremely disadvantageous for borrowers. Given the current level of the reference interest rate and rising instalments on bank loans and credits, it would be more profitable to include a low interest rate in the loan agreement than to choose a gratuitous variant (because in the gratuitous loan variant the income would be equal to the average interest rate of current commercial loans). Fortunately, in the content of the analysed interpretation, the Director of the National Tax Information fully agreed with the applicant’s position. The authority emphasised that if the parties stipulated the absence of remuneration in the form of interest in the loan agreement, this fact does not give rise to tax consequences in the form of the borrower receiving a gratuitous benefit. Consequently, under the provisions of the Personal Income Tax Act, receiving an interest-free loan is tax-neutral. Therefore, the tax authorities agreed that the applicant is not obliged to pay personal income tax.
The analysed interpretation constitutes a good forecast primarily for taxpayers seeking ways to optimise the taxation of loans obtained on favourable terms from unrelated persons (separate exemption is provided for close family even if gratuitous income arose).
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