A list of changes in law and drafts of legal acts which have a significant impact on ettrepreneurs

Compiled by: Krzysztof Borżoł, lawyer, Senior Associate at Taylor Wessing law firm in Warsaw

CIVIL LAW

Act of 9th November 2018 on amending certain acts in order to simplify economic and tax law for entrepreneurs (hereinafter referred to as the "act". Journal of Laws 2018 item 2244), the so-called SME package)

  1. The Act introduces far-reaching changes, inter alia, in the scope of civil, commercial and labour law regulations.

  2. Article 1 of the Act amends Article 39 of the Civil Code, a provision concerning the effects of concluding an agreement by a person acting as an authority of a legal entity without or in excess of the power of attorney. Such a person may be, for example, a member of the management board of a limited liability company, whose mandate has expired and who was not appointed for another term of office due to an oversight. According to the new regulation, the validity of the agreement concluded by such a person is dependent on its confirmation by the legal entity on whose behalf it was concluded (the so-called ineffectiveness suspended).

  3. As for unilateral legal acts, their performance without or exceeding its scope, in the absence of consent of the addressee of the declaration of intent is absolutely null and void. The newly introduced Article 39 of the Civil Code is therefore symmetrical to the provisions of Articles 103 and 104 of the Civil Code applicable to the proxy. An unambiguous regulation resolves existing disputes in the doctrine and jurisprudence.

Coming into force: 1st January 2019

CORPORATE

Act of 9th November 2018 on amending certain acts in order to simplify economic and tax law for entrepreneurs (the so-called SME package)
The SME Package also introduces changes to the Commercial Companies Code, primarily for limited liability companies, the most important of which are:

  1. Removal of some of the existing restrictions on distance and circular resolutions of shareholders. Up until now, the so called final annual resolutions, adopted by the ordinary general meeting of shareholders, could not be adopted in such a manner. The amendment to the SME removes the provision which establishes this restriction. The written procedure still does not allow, among others, for resolutions to be passed in a secret manner.

  2. Introduction of the procedure for the resignation of the last member of the management board in the company through the provision of Article 202 § 6 of the Commercial Companies Code, according to which, if as a result of the resignation of a member of the management board no mandate in the management board would be filled, a member of the management board shall resign to the shareholders, at the same time convening a shareholders' meeting. Such resignation shall only be effective on the day following that on which the meeting of shareholders has been convened. Although this solution partially prevents the existence of companies with unincorporated and incapacitated management, it creates an exception to the general principle of the Civil Code, according to which a declaration of intent is made to another person when it was executed in such a manner that he or she could have acquainted him or herself with its content. New Article 202 § 6 of the Commercial Companies Code which also opposes the resolution of seven judges of the Supreme Court of 31st March 2016. (ref. no. III CZP 89/15), partially making it obsolete. As a result of the planned changes, there is a risk that the last member of the Management Board will for some period of time be forced to perform an unwanted function and bear the related liability, e.g. in the event of bankruptcy. The above procedure of resignation applies accordingly to the last member of the supervisory board of a limited liability company, if such a body has been established. A similar change has been introduced for a public limited company, with the difference that the last member of the management board submits his resignation to the supervisory board, and when no mandate in the supervisory board is filled, to the shareholders, and at the same time convenes the general meeting. Also in this case, the regulation is applied accordingly to the member of the supervisory board.

  3. An unambiguous regulation of the procedure for amending the articles of association of a limited liability company in organization by adding Article 161 § 4 of the Commercial Companies Code, according to which an amendment of the articles of association of a limited liability company in organization requires the conclusion of an agreement by the shareholders. The provision does not apply to the articles of association concluded in the information and communication system. The wording of the new art. 161 § 4 of the Commercial Companies Code is consistent with the Decision of the Supreme Court of 25th February 2009 (ref. no. II CSK 489/08) and confirms the previous practice in this respect.

  4. Regulation of issues related to a dividend in the absence of shareholders' resolution on the subject, i.e. the dividend day (according to which the list of shareholders entitled to a dividend for a given financial year is determined) and the dividend payment date. Pursuant to the new Art. 193 § 3 sentence 2 of the Commercial Companies Code, if the resolution of the shareholders' meeting does not specify the dividend day, the dividend day is the day of adopting the resolution on profit distribution. On the other hand, according to the amended art. 193 § 4 of the Commercial Companies Code, if the shareholders' meeting does not specify the date of dividend payment, its payment should take place immediately after the dividend day. So far, the issue of the dividend day and the dividend payment date, in the absence of a resolution of shareholders in this respect, has raised considerable doubts in practice.

  5. Regulating the return of an advance payment for a dividend by adding the article 195 § 11 of the Commercial Companies Code, according to which if in a given financial year an advance payment for the expected dividend was paid to shareholders and the company recorded a loss or made a profit in an amount lower than the advance payment, the shareholders return the advance payment in: 1) the entire amount as for recording a loss, or 2) a part corresponding to the amount exceeding the profit attributable to the shareholder for a given financial year - when profit is lower than the advance payments towards the expected dividend. This issue has not yet been regulated. So far, it has been necessary to specify the rules for the return of the dividend advance payment in the articles of association, and in the absence thereof, to refer to the provisions on illigitimate enrichment.

  6. Introducing the facility to cancel the convened meeting of shareholders by adding Article 236 § 3, according to which the shareholder(s) who have requested the convening of an extraordinary general meeting have the exclusive right to cancel it.

  7. The emphasis on the need to attach a power of attorney to represent the shareholder at the meeting of shareholders to the book of minutes each time.

Moreover, the SME Package introduces changes to the Commercial Companies Code with respect to partnerships, inter alia, by means of:

  1. Addition of a new art. 97 § 3 of the Commercial Companies Code, concerning the partner company in which the management board was appointed, according to which, at least one partner is always a member of the management board, and only a third party may also be a member of the management board. This solution is consistent with the essence of the professional partnership as a company bringing together specialists and managed by them.

  2. Amendment of Article 149 § 1 of the Commercial Companies Code. concerning a limited joint-stock partnership, stipulating that termination of the articles of association by the general partner and his withdrawal from the partnership is permissible. At present, such a withdrawal is possible only if it is permitted by the articles of association of the company.

Coming into force: 1st January 2019.

ACCOUNTING

Act of 9th November 2018 on amending certain acts in order to simplify economic and tax law for entrepreneurs (the so-called SME package)

  1. The Act significantly reduces the mandatory period to store approved annual financial statements by the entities obliged to prepare them. According to the new act, this period shall be at least 5 years, starting from the beginning of the year following the financial year in which they were approved.

  2. In accordance with the currently valid art. 74 of the Accounting Act, the approved annual financial statements are subject to permanent storage.

  3. It is worth recalling that as of 1st October 2018, financial statements are drawn up in an electronic format and bear a qualified electronic signature or a signature confirmed by a trusted profile of the ePUAP.

  4. The amended Article 74 of the Accounting Act applies for the first time to financial statements prepared for the financial year commencing after 31st December 2018.

Coming into force: 1st January 2019

ENTREPRENEURSHIP

Act of 9th November 2018 on the National Debt Register
Significant changes in Article 19e of the Act on the National Court Register are introduced by the Act of 9th November 2018 on the National Debt Register, passed by the Sejm.

  1. According to the new wording of the provision, the Notification shall bear a qualified electronic signature or a trusted signature of at least one natural person whose PESEL number is disclosed in the Register, registered as authorised independently or jointly with other persons to represent the entity, proxy, receiver, administrator in restructuring proceedings or liquidator. The change consists in extending the catalogue of people who submit financial documents by, among others, a proxy, attorney, legal counsel and a foreign lawyer. Thus, the veracity of the raised position was confirmed, that submitting financial documents in accordance with the amended Act on the National Court Register is an exception to the general rules of representation provided for, inter alia, in the Commercial Companies Code. The same directory of entities will be able to sign copies of submitted financial documents.

  2. This amendment resolves the issue faced by entities with management bodies composed entirely of foreign nationals since March 2018. Signing and submitting copies of financial documents was only possible for persons holding PESEL. At the same time, it was not possible to sign copies and submit them by a proxy or a professional proxy.

Legislative stage: The law has been submitted to the President for signature.

It is worth bearing in mind that in accordance with the provisions of the Accounting Act, which came into force on 1st October 2018, the financial statements are prepared in an electronic form and bear a qualified electronic signature or a signature confirmed by a trusted profile of ePUAP. As for entities entered in the Register of Entrepreneurs of the National Court Register, the report is prepared in a logical structure and in a format available in the Public Information Bulletin of the Minister for Public Finance.

Coming into force: 1st January 2019

TAX LAW

Act of 9th November 2018 on amending certain acts in order to simplify economic and tax law for entrepreneurs (the so-called SME package)

  1. One-off tax loss settlement of up to PLN 5 million will be introduced (only the surplus of this amount would be settled in accordance with the existing rules taking into account a maximum of 50% in one year).

  2. Increase of the sales threshold, which entitles one to the status of a "small taxpayer". - from EUR 1.2 million to EUR 2 million. This solution will come into force on 1st January 2020.

  3. The status of "small taxpayer" provides for preferences in terms of depreciation, less frequent obligation to pay advances for PIT and CIT and lower taxation (in CIT):

    1. The "small taxpayer" has the right to a one-off depreciation, that is a one-off inclusion of the entire value of fixed assets in the tax deductible costs in the month of entry into the register (maximum value up to EUR 50,000 per year); there is no need to spread the purchase cost over the entire depreciation period,

    2. quarterly method of settling advance payments for income tax - an entrepreneur may pay advance payments for tax on a quarterly basis, resulting in less formalities related to filing declarations and making transfers (4 transfers instead of 12).

  4. CIT tax exemption from certain income of alternative investment companies (AIC) obtained from the sale of shares (sale of shares if the total number of shares held in the company was at least 10% and for not less than 2 years).

  5. Exemption from income tax of amounts of compensation (paid out from the insurer) intended for restoring damaged assets. This exemption will apply to all fixed assets, except for a passenger car.

  6. Standardising tax declaration forms for local taxes (real estate tax or forest tax) and enabling one to submit them electronically. Currently, the forms are very diverse - they are developed by self- governments. This makes it difficult for entrepreneurs who own real estate in more than one commune to settle taxes due to self-governments.

  7. Shortening the time period entitling a creditor who has not received an amount due to take advantage of the relief for bad debts in VAT from 150 to 90 days.

Changes in  Corporate Income Tax (CIT) Act.

1. Preferential 9% CIT rate:

  • will only be available to small taxpayers and taxpayers starting up a business activity,

  • when revenues generated in the current tax year (earlier in the preceding year) did not exceed the PLN equivalent of EUR 1.2 million.

This change is unfavourable for entities which generated revenue below the statutory limit in the previous tax year and at the same time generated revenue in the current year, higher than the above limit.

2. Exit tax - tax on unrealised profit.

  • According to the EU directive 2016/1164 (ATAD), all EU countries are obliged to introduce the so-called exit tax by the end of 2019. The aim of the directive is to ensure that taxes are paid at the place of profit.

  • It is a new tax covering entities which transfer all or part of the assets related to the activity conducted so far on the territory of Poland to abroad, transfer the establishment conducted on the territory of the Republic of Poland or change their tax residence.

  • In the case of natural persons, it will cover income related to the conducted business activity, shares in companies, derivatives and investment funds.

  • In the case of CIT taxpayers, CIT will amount to 19% of the value of assets (regardless of the value of assets), however for PIT taxpayers, 19% and 3% rates are envisaged, when the value of assets transferred exceeds PLN 4,000,000.

3. Changes in WHT- withhold tax

  • As a rule, the changes will apply to payments of receivables (from the catalogue contained in art. 21 paragraph 1 of the CIT Act) in excess of the amount of PLN 2,000,000.

  • After exceeding the above mentioned threshold, the taxpayer will be obliged to pay tax according to the basic rates (in such a case the exemption or reduced tax rates will not apply).

  • A taxpayer may avoid payment of tax if he/she submits a statement (under pain of criminal liability) that he/she has appropriate documents allowing for the application of the preferential tax rate and, moreover, that he/she is not aware of circumstances excluding the possibility of not collecting tax on the basis of the relevant double taxation avoidance agreement or the application of the exemption or rates provided for in specific provisions.

4. IP BOX

  • Provisions will be introduced which provide for preferential taxation of revenue from qualified intellectual property rights.

  • The tax advantage will not only concern the rights created by taxpayers, but also the rights improved and developed by them.

  • The income tax will amount to 5% provided that the taxpayer conducted a business activity directly related to the production, development or improvement of intellectual property rights.

  • When determining the tax base, the sum of qualified income from qualified intellectual property rights, based on the model indicated in the Act, will be taken into account.

Act on rules for taxation

1. MDR regulations - submission of tax scheme.

  • A completely new obligation has been introduced to notify the Head of the National Revenue Administration of the arrangements which constitute the so-called tax schemes - not every arrangement is a scheme.

  • It will initially be imposed on promoters who create, make available and implement tax schemes. A "promoter" is defined, among others, as a tax advisor, attorney,  attorney-at-law, legal advisor or bank employee.

  • In certain situations, taxpayers who use tax schemes will be obliged to provide those schemes to National Revenue Administration.

  • The Act defines the prerequisites for recognising agreements between promoters and beneficiaries as tax schemes based, among other things, on specific features: 1) general, 2) special and 3) other special features. In addition as for a general feature, the condition for recognising the agreement as a tax scheme is the fulfillment of the criterion of the so-called main benefit. Cross-border schemes which must have the relevant features have also been identified.

  • After fulfilling the criteria specified in the Act, the promoter or beneficiary (taxpayer) is obliged to provide information about the applied or planned scheme in electronic form to the Head of the National Revenue Administration, in principle within 30 days.

  • Failure to comply with the obligation to provide the scheme is subject to a fine of 720 daily rates, i.e. up to a maximum of PLN 21.6 million.

  • In principle, the promoter/beneficiary is obliged to submit information about the scheme within 30 days from its disclosure, implementation and development.

  • It should be noted that under the transitional provisions, the reporting obligation will cover schemes implemented after 25th June 2018 in the case of cross-border schemes and from 1st November 2018 in the case of the remaining schemes. The deadline for providing information about these schemes was the end of June 2018.

2. Additional tax liabilities

  • From 1st January 2019, the authorities will be able to determine the additional tax liability at the time of issuing the decision.

  • This will be the case when the authority issues a decision with an application of:

    • the general anti-tax avoidance clause of art. 119 a of the Act on rules for taxation

      • 10% for income taxes

      • 40% for other taxes (excluding VAT)

    • small clauses against tax avoidance from CIT and PIT acts

      • to the amount of 10% of the sum of the wrongly reported loss or unreported income,

    • measures limiting the contractual benefits (from agreements on the avoidance of double taxation), in the amount of 10% of the sum of the wrongly reported loss or unreported income,

    • provisions regarding transfer prices

      • to the amount of 10% of the sum of the wrongly reported loss or unreported income

    • art. 30 § 1 of the Act on rules for taxation - if the statement allowing for exempting/reducing withholding tax was untrue, the payer did  not verify or the verification was erroneous

      • to the amount of 10 of the tax base for receivables.

  • In special cases, these rates may be doubled or tripled

Changes in the Fiscal penal code act

  1. In 2019, the daily rate of the fine for a fiscal offence will be from PLN 75,000 to PLN 30,000. The fine may not be lower than PLN 750. The maximum amount of the fine will be PLN 21.6 million. A court order will allow imposing a fine of up to PLN 6 million. On the other hand, the fine for a fiscal offence will be from 225 PLN to 45 thousand PLN. The fine will not be higher than PLN 4.5 thousand. The maximum fine imposed by a court verdict will amount to PLN 22,500. The increase in penalties is related to the increase in the minimum remuneration rate.

  2. In addition, new types of crimes will be introduced, related to: infringement of the obligation to submit information on the preparation of documentation regarding transfer prices, submission of documentation related to transfer prices, failure to report tax schemes, submission of an untrue statement conditioning the exemption from WHT or reduction of the tax rate.

LABOUR LAW AND SOCIAL INSURANCE LAW

Act of 9th November 2018 on amending certain acts in order to introduce simplifications for entrepreneurs in economic and tax law (the so-called SME package)

  1. The SME package eliminates the obligation of periodic health and safety training for nearly 6 million workers in the least accident oriented industries. The change will cover administrative and office workers employed by the employer qualified to the group of activities for which no higher than the third risk category has been determined, as defined by the provisions of the Social Insurance Institution (ZUS). Currently, the employer bears the cost of purchasing the service and conducting the training.

  2. The Act also raises the threshold from 20 to 50 employees for which the employer - if he/she is qualified to no higher risk category than the third one within the meaning of the Social Insurance Institution provisions – he/she does not have to employ an OHS specialist, but he/she can perform OHS service tasks on his/her own.

Changes in the Act of 26 June 1974. The Labour Code

  1. The period for keeping employee files will be reduced from 50 to 10 years.

  2. From 2019 it will be possible to store employee files in electronic form.

  3. In accordance with the amendment of the Labour Code with regards to the rules of payment of remuneration to employees, from 1 January 2019 (according to art. 86 § 3 of the Labour Code) payment of remuneration shall be made to the bank account indicated by the employee, unless the employee submits an application for payment of remuneration to their own hands, in paper or electronic form. Previously, the rule was to pay remuneration to the employee’s hands.

  4. If the employee does not have a bank account and at the same time has not submitted an application for payment of remuneration to their own hands, the employee's salary will be transferred to the basic bank account. This is a free of charge account, which has been obligatorily opened by banks since August 2018. Opening and maintenance of such an account, used exclusively for the receipt of remuneration, is free of charge.

  5. Apart from the employment certificate, the employer will be obliged to provide the employee with additional information about the newly introduced rules of keeping employee files, i.e.:

  • period of keeping employee files - 10 years, starting from the end of the calendar year in which the employment relationship was terminated or expired, unless separate provisions provide for a longer period of keeping employee files (unless, due to pending proceedings - this period will be extended);

  • the possibility for the employee to receive employee files by the end of the calendar month following the end of the period of keeping employee files;

  • destruction of employee files in the event of failure to receive them.

Other changes

From 1st January 2019:

  • minimum remuneration for work will amount to PLN 2,250 gross.

  • The minimum hourly rate for contractors or service providers will be PLN 14.70.

COMPETITION AND CONSUMER LAW

Act of 9th November 2018 on amending certain acts in connection with the strengthening of supervision over the financial market and protection of investors in this market.

The President of the Office of Competition and Consumer Protection (OCCP) has been given more powers through the introduction of the Act on Strengthening Supervision over the Financial Markets:

The President of the Office of Competition and Consumer Protection (OCCP) is entitled to impose a fine on managers in the event of discovering that he intentionally contributed to the violation of the collective interests of consumers or the use of prohibited clauses in commercial agreements.

By way of a decision, the President of the Office of Competition and Consumer Protection will be able to impose a fine of up to PLN 20 million on a natural person and up to PLN 5 million in the case of management staff.

Coming into force: 15th December 2018

INDUSTRIAL PROPERTY LAW

At present, the Sejm is working on an amendment to the Industrial Property Act. The amendment is intended to adapt Polish regulations to Directive 2015/2436 of 16th December 2015.

An important change will be in the definition of a trademark and the abandonment of the requirement of a graphic representation of the trademark. This is to respond to the use of new technologies in economic trade. The trade mark applied for must be able to be presented in the trade mark register in a manner allowing for the determination of an unambiguous and precise subject matter of protection.

The mechanism for extending the right of protection is to be changed. The payment of the fee itself will result in an extension of protection. Thus, the need to file an application and issue a separate decision by the Patent Office will be eliminated.

The protection of claims for infringement of trademark rights will also be extended. Currently, only the trade mark owner and the exclusive licensee are entitled and the licence has been entered in the trade mark register. After the amendment, any licensee will be entitled to a claim.

Stage of work: 14th December 2018 presented for first reading in the Sejm. 

Keywords Taylor Wessing