Applicant (i.e. A cooperative bank) asked the interpretative body whether the persons belonging to the Supervisory Board of the Bank, as well as the spouses, relatives or persons related to second the degree of such persons, they meet the conditions for being considered as a related entity, in accordance with the rules Article 11a Corporate Income Tax Act (hereinafter: the Corporate Income Tax Act).
The applicant indicated that the tasks of the members of the supervisory board in the performance of this function include:
- request the Financial Supervision Authority to approve the appointment of the President of the Management Board;
- appointing and withdrawing members of the Management Board by secret ballot;
- the adoption of financial and economic plans and programmes for social and cultural activities;
- supervision and control of the bank's operations;
- adopting resolutions on the acquisition and imposition of real estate and the acquisition of an establishment or other establishment.
In addition, the applicant stressed in the description of the facts that only members of the supervisory board are members of a bank that are natural persons and that each member, regardless of the number of shares held, has the right to one vote and therefore does not have, directly or indirectly, at least 25% voting rights in the control body or body. In view of the above, the members of the Supervisory Board do not have the actual ability to influence the bank's key economic decisions.
The applicant also claimed that the supervisory board must not include persons holding managerial positions in a bank, board of directors and persons remaining with board members, bank agents or persons holding managerial positions in a marital relationship, or in relation to the relationship or affinity in a straight line, and In the second the degree of the lateral line.
On the basis of the above, the applicant concluded that the persons belonging to the supervisory board of the bank, as well as the spouses, relatives or relatives who were related to second the extent of those persons, they do not meet the conditions for being considered to be affiliated to the bank in accordance with the rules Article 11a the Corporate Income Tax Act
In the light of the legal situation in force, the tax authority considered the applicant’s position to be incorrect.
In its explanatory memorandum, the Authority stressed that, on the basis of the facts presented, the supervisory board members have the actual ability to influence the bank's key economic decisions. The actual capacity means the possibility of influencing key economic decisions both by exercising formal functions in the supervisory board (e.g. by being a real member of the supervisory board), and the real possibility of such an impact without formal authority, through the related persons indicated in the proposal.
In the assessment of the Authority, taking into account the above considerations, the persons belonging to the supervisory board of the bank, as well as the spouses, relatives or persons related to second the degree of such persons, meet the conditions for being considered as related entities within the meaning of Article 11a(1)(4) the Corporate Income Tax Act
Thus, it cannot be concluded that no direct or indirect possession of at least 25% the rights of votes in the bank's body constitute a reason for the absence of a link.
As interpreted by the Director of National Tax Information (reference no. 0111-KDIB1-2.4010.231.2020.2.BG).