The Provincial Administrative Court in Gliwice issued a judgment on 28 September 2015 (case no. I SA/ GL 583/15) in which it described the methodology of calculating the basis of assessment for the tax on civil law transactions (TCLT) to be levied on the founding of a partnership limited by shares (PLS).
A PLS (in organization) was established by virtue of a notarial deed in which the partnership’s share capital was put at PLN 50,000.00, this being just part of the monetary contribution made at the time of the founding of the PLS. The rest of the monetary contribution (over and above the nominal value of shares) was allocated to the PLS’s surplus capital. The notary, acting in its capacity as payer, collected the tax on civil law transaction calculated for the aggregate amount contributed to the share and surplus capital.
The PLS applied for a tax ruling to clarify whether the amount subject to tax on civil law transactions ought to include also the contributions exceeding the share capital. The position of the PLS was that TCLT ought to be levied in connection with the founding of the PLS only on the amount of the share capital contributed on the date of the partnership’s founding while the additional amount contributed by a shareholder and allocated to the PLS’s surplus capital should be excluded from the basis of assessment for the TCLT.
The Director of the Tax Chamber in Katowice disagreed with the PLS, emphasizing that while, as can be seen from the Commercial Company Code, the PLS is a partnership with many elements of a capital company (including the share capital), this does not mean that it must be treated differently from other partnerships on the grounds of the Act on Tax on Civil Law Transactions. The Director argued that upon the execution of the deed establishing the PLS, the basis of assessment for the tax at issue ought to include the sum total of the contributions being made to it (including those made in addition to the share capital), as would be the case with every other type of partnership.
The Provincial Administrative Court in Gliwice set aside the appealed tax ruling, explaining that while the tax authority correctly assumed that on the grounds of Polish law a PLS is a partnership, the court is bound first and foremost by EU laws, including the Capital Duty Directive (2008/7/EC) in which organizations like PLSs are classified as capital companies. Therefore, when determining the basis of assessment for the TCLT, the PLS must be treated as a capital company. Accordingly, the monetary contribution exceeding the PLS’s share capital is not subject to TCLT.
This judgment is another in a series of rulings in favor of TCLT payers operating as PLSs. It must be applauded as being in line with the currently prevailing trend in administrative court rulings, resulting from, among other things, the judgment recently handed down by the EU Court of Justice in the Drukarnia Mulitipress case (C-357/13) in which the Court explicitly stated that in the sense of the Capital Duty Directive (with the TCLT being in fact a form of capital duty), Polish PLSs must be deemed capital companies. As a result, the basis of assessment for the TCLT to be levied in connection with the formation of a PLS must be determined as in the case of any other capital company and not as for a partnership.