In the judgment of August 18, 2015 (case no. II FSK 2510/13) the Supreme Administrative Court confirmed that a registered partnership is excluded from the scope of application of the Capital Duties Directive (69/335/ EEC). Therefore, Restructuring activities in such a company are subject to civil law transactions tax (PCC).
A joint stock company, as a legal successor of a registered partnership, applied for the overpayment of the PCC collected by the remitter – a notary public – in relation to the increase of a contribution to the registered partnership, covered by an in-kind contribution of shares in other companies.
According to the company, the said amendment of the articles was PCC exempted on the basis of the Capital Duties Directive (69/335/EWG). Tax authorities refused to declare an overpayment of the PCC. The Provincial Administrative Court in Rzeszów did not accede to the company’s argumentation either. The case was finally submitted to the Supreme Administrative Court which dismissed the company’s cassation appeal.
According to the Supreme Administrative Court, a Polish registered partnership is not a capital company in the meaning of the Capital Duties Directive (69/335/EEC). Art. 3 sec. 2 sentence 2 of the Directive provides for a Member State’s right not to consider an entity a capital company. On the accession date Poland decided, on the one hand, to confirm PCC taxation of all companies, but at the same time in Art. 1a point 1 of the PCC Act it defined a separate category, namely a partnership, though previously there was no such differentiation. This allows the conclusion to be drawn that it was the legislator’s explicit will to impose an indirect tax on the gathering of capital not only on capital companies and to differentiate these various organizational forms on grounds of tax law by adopting the concept of a partnership established in the Commercial Companies Code, though the directive does not use this term. In this respect it is legitimate to conclude that the Polish legislator effectively took advantage of the option of excluding partnerships (including, without limitation, a registered partnership) from the application of the Capital Duties Directive (69/335/EEC), insofar as it concerns imposition or the rules of imposing a capital tax such as the civil law transactions tax.
According to the Supreme Administrative Court, exercise by Poland of the right not to regard certain entities as capital companies does not mean that the rules of taxation of transactions listed in Art. 1, made by companies other than capital companies in the meaning of Art. 3 sec. 1 of the Capital Duties Directive (69/335/ EEC), adopted in the PCC Act, may be considered discretionary.
This is another judgment confirming that restructuring activities in registered partnerships do not enjoy the same tax exemption as in the case of capital companies. The situation of partnerships, i.e. civil, registered and professional partnerships is much different, as their characteristic feature is the scope of liability of all partners, without any exceptions, and the lack of a necessary capital (shareholding) element. The exemption is applicable to limited partnerships and limited joint stock partnerships. Hence, restructuring activities in limited joint stock partnerships and limited partnerships, taxed with PCC, are worth analyzing.