Special investment fund and its impact on the clearing of depreciation in tax costs

The PDOPrU amendment introduced new solutions for entrepreneurs. To support the development of our economy, entrepreneurs were offered two options for reducing the corporate tax liability – with the possibility for taxpayers to use the cash thus released for innovative investments. one of these options is a lump sum on the income of capital companies, and second – a special investment fund.

The aim of the legislature was primarily to support smaller companies. The target group for these new provisions of the PDOPrU is those affected by liquidity and access to funding problems.

In addition to the Estonian CIT, entrepreneurs have been given the option to select a special investment fund (account) that allows for faster investment than before in the company's tax costs. In other words, this new tax incentive allows entrepreneurs to save their capital for development and increase their investments in fixed assets.

Entrepreneurs cannot benefit from these at the same time two preferences. If they meet the conditions, they can choose one of them. It is worth examining which solution from an economic point of view will be more advantageous.

The PDOPrU is indicated two tax options, i.e.:

Under Article 28j-28t PDOPrU: a lump sum on the incomes of capital companies, the so-called Estonian CIT, namely a system that binds income to the categories of balance sheet law and significantly changes the basic principles of taxation in force in the PDOPrU,
Under Article 15(1hb-1he) PDOPrU: a special investment fund that, in an economic sense, allows for faster settlement of depreciation of fixed assets in tax costs, taking into account the existing (classical) tax rules in force in the PDOPrU.

Entities entitled to benefit from a special investment fund

Entity wishing to benefit from the facilities of the special investment fund in question under Article 15(1hb-1hf) PDPPrU, must meet the conditions set out in all under Article 28j(1)(2-6) PCOPrU, namely:

1) less than 50% revenue referred to above — Under point 1, Origin:

(a) from a claim,
(b) interest and benefit on all types of loans,
(c) from the percentage part of the leasing instalment,
(d) guarantees and guarantees,
(e) copyright or industrial property rights, including the sale of those rights,
(f) the sale and implementation of rights from financial instruments,
(g) related party transactions within the meaning of Article 11a(1)(4) PDOPrU — where the value added in economic terms is not generated in relation to these transactions or the value is negligible;

2) taxable person:

(a) employ at least on the basis of an employment contract 3 persons on a full-time basis who are not shareholders or shareholders of that taxpayer for at least a period of time 300 days in the tax year and where the tax year is not a subsequent period twelve calendar months — for at least 82% the days of the tax year, or

(b) bear monthly expenditure in an amount of at least three times the average monthly remuneration in the enterprise sector for the payment of wages to employees under a contract other than a contract of employment at least 3 natural persons who are not shareholders or shareholders of that taxable person, if, in connection with the payment of these salaries to the taxable person, they are required to collect advances on income tax on individuals and contributions referred to in SysUbSpol;

conducts activities in the form of a limited liability company or a public limited liability company of which, respectively, only natural persons who do not have the right to receive a benefit as founders or beneficiaries of a foundation, trust or other entity or a legal relationship of a trust nature are shareholders or shareholders;
does not hold any shares in the capital of another company, the titles of participation in an investment fund or in a joint investment institution, the total rights and obligations in a company that is not a legal person and other property rights relating to the right to receive a benefit as a founder or beneficiary of a foundation, trust or other entity or a legal relationship of a trust nature;
does not draw up a lump sum of financial statements in accordance with IAS on the basis of Article 45(1a)(1b) AccountU.

Entities not eligible for a specific investment fund

Legislative under Article 28k in conjunction with Article 15(1hb) PDOPrU lists exhaustively a list of entities excluded from the possibility of using a special investment fund. They are:

1) financial undertakings:

(a) the domestic bank,
(b) a credit institution,
(c) the cooperative savings and credit and the National Cooperative Saving and Credit Saving and Restructuring Fund,
(d) an investment firm,
(e) the company, managing an alternative investment company, a management company and a management company from the EU,
(f) the national insurance undertaking and the foreign insurance undertaking,
(g) the national reinsurance undertaking and the foreign reinsurance undertaking,
(h) a voluntary fund,
(i) an open fund,
(j) an employee fund,
(k) company,
(l) foreign employer,
(l) foreign managers,
(m) open investment funds and alternative investment funds,
(n) the central counterparty,
(o) a central securities depository;
2) credit institutions;
3) taxable persons pursuing income from economic activities carried out in a special economic zone on the basis of an authorisation and income from taxable persons from economic activities as defined in the support decision;
4) taxable persons in bankruptcy or liquidation;

5) taxpayers who have been created:

(a) by merger or division, or

(b) by legal persons, natural persons or entities not having a legal personality, as contributions in kind to the capital of the taxable person, assets acquired by those persons or entities as a result of the liquidation of other taxable persons, if those persons or entities held shares in those other liquidated taxable persons, or

(c) by legal persons, natural persons or entities not having legal personality, if, in the tax year in which the taxable person was established or in the tax year immediately following that, the undertaking previously held, the organised part of the undertaking or the assets of that undertaking with a value exceeding the total equivalent in the amount of 10,000 EUR converted by the average euro rate announced by the NBP In the first the working day of the month preceding the month in which those assets were transferred, rounded to 1,000 PLN, the value of these components shall be calculated by applying the provisions accordingly. Article 14 PDOPU

in the tax year in which they started operations and in the tax year immediately after it
the following, but not less than for a period 24 months from the date of establishment;

6) taxable persons who:

(a) have been divided by separation or

(b) make a contribution to another entity, including capital:

an undertaking previously run by it, an organised part of the undertaking or assets of that undertaking with a value exceeding the total equivalent in the amount of gold 10,000 EUR converted by the average euro rate announced by the NBP In the first the working day of the month preceding the month in which those assets were transferred, rounded to 1,000 PLN, the value of these components is calculated by applying the relevant provisions, or
assets acquired by that taxpayer as a result of the liquidation of other taxable persons if that taxpayer held shares (shares) of those other liquidated taxable persons • in the tax year in which the division was made or the contribution was made and in the tax year immediately following it, but not less than for a period 24 months after the date of division or contribution.

NIKO sp. z o.o. conducts economic activity in the area of a special economic zone on the basis of a permit. Although the company meets the conditions (described) Under point 2 This Article) to be covered by a special investment fund, since its activities are carried out in the SEZ, the company is excluded from choosing this preference.

Investment objectives

Through investment expenditure in question under Article 15(1hb) PDPPU, is understood to have actually incurred in the tax year:

1) expenditure on the pre-accession acquisition of new fixed assets or the production of fixed assets,
2) the fees fixed in the contract in accordance with Article 3(4) or (6) Accounting Laws, excluding operating leases, in part constituting the repayment of initial value of fixed assets

Grouped 3-8 Classification of Persistent Measures (STCs), issued on the basis of separate provisions, hereinafter referred to as ‘Classification’, excluding passenger cars, means of air transport, rolling stock and other assets intended primarily for the personal purposes of the company's shareholders or members of their families.

Determination of costs

The tax payers who have chosen this tax preferences may be included in the cost of obtaining revenue offsettings on an investment fund set up for the reserve capital if the following cumulative conditions are met:

the fund is created from the profit realised for the year preceding the tax year;
the cash equivalent corresponding to the value of the write-down on that fund shall be paid, no later than the date on which that write-down was made, to be deducted for that purpose only:

(a) the clearing account in question under Article 49(1)(1) PrBank, an eligible entity within the meaning of Article 119zg(4) OrdPU or

(b) the account of a cooperative member of a credit and savings bank that is a qualified entity within the meaning of Article 119zg(4) OrdPU;

cash does not come from a loan (credit), grants, subsidies, subsidies or other forms of financial support;
the funds collected in the tax year of that fund shall be spent for those investment purposes no later than the tax year following the year in which that write-down was made, unless:

(a) the taxable person shall submit to the competent head of the tax office information on the planned investments indicating the year of the fund's expenditure for these investment purposes; and

(b) expenditure of these appropriations shall take place no later than In the third the tax year following the year in which that copy was made, each tax year of which 3 years may not exceed 12 months.

Inappropriate spending

If in the tax year:

1) the taxpayer has spent funds from the fund for purposes other than investment purposes or funds from that fund have been financed or reimbursed to the taxpayer in any form whatsoever; or
2) the taxable person did not fulfil the conditions to benefit from the special investment fund, or
3) Fund expenditure has not been spent in accordance with the rules
• from the following year onwards, loses the right to make write-offs, which are included in the cost of obtaining revenue over the period 3 tax years, but not less than a period 36 months.

Revenue for taxation

It may happen that the taxpayer has included a write-off for investment purposes in the cost of obtaining revenue, but has not fulfilled the conditions of the PDOPrU. The taxpayer should then increase its tax revenue accordingly. Such circumstances are regulated Article 12(1)(6b-6d) The following situations are involved:

1) the amounts written off or paid from the fund have been allocated by the taxpayer for purposes other than investment purposes;
2) the amounts written off or paid from the Fund have been financed or reimbursed to the taxpayer in any form;

the taxable person has not fulfilled the conditions in question under Article 28j(2-6) PPOPrU – the taxable person should, in the tax year of the infringement of these conditions, count as revenue the equivalent of the funds collected on the fund, taking into account that this income arises on the last day of the tax year in which the taxable person did not fulfil the conditions set out in those provisions;
appropriations were spent for investment purposes later than the tax year following the year in which the write-down was made and the taxpayer:

(a) it has not submitted information to the competent head of the tax office on the planned investment activities, together with a statement on the year of the fund's investment expenditure, the taxpayer should count as revenue the equivalent of the funds collected in the fund, the revenue arising on the last day of the tax year in which the taxpayer failed to fulfil the condition,

(b) the taxable person has submitted to the competent head of the tax office information on the planned investment activities together with a statement on the year of spending the fund for investment purposes, however these funds were spent later than In the third the tax year following the year in which that copy was made, in such a situation, the taxable person should count as revenue the equivalent of the funds collected on the fund, taking into account the fact that this income arises on the last day of the tax year in which the taxable person failed to fulfil the conditions laid down in the PDAPU.

Alfa sp. z o.o. included the cost of obtaining revenue In 2022 a write-down for investment purposes of 100,000 PLN. In 2023 the company was to purchase a complete transformer station, having two high voltage distribution fields.

However, it only purchased this fixed asset In 2025 Therefore, the funds were spent for investment purposes later than the tax year following the year in which the write-down was made and the taxpayer did not report to the competent head of the tax office on the planned investment activities together with a statement on the year of the fund's investment expenditure.

Consequently, the company should increase its income by 100,000 PLN, the revenue is generated on the last day of the tax year 2023. The company is also obliged to pay interest.

Interest shall be due for the period from the date on which it is credited to the cost of obtaining the income of write-downs on the fund for investment purposes until the date on which that income arises.

The company should calculate the interest at the rate of default interest applicable to tax arrears applicable on the date of the write-off.

Interest due

In addition to showing revenue (in the situations described above), the taxpayer is also obliged to pay to the tax office the amount of interest calculated from the date on which the revenue received for the fund for investment purposes was calculated until the date on which that income was generated. Interest should be calculated at the rate of default interest applicable to tax arrears at the date of the write-off. The amount of interest charged shall be shown by the taxpayer in the annual tax return.

De minimis aid

According to Article 15(1he) The amount of the contribution to the Fund shall be de minimis aid granted to the extent and in accordance with the principles laid down in the directly applicable EU law on de minimis aid. This form of support is limited.

According to Article 3(2) Commission Regulation (EU) No Regulation (EU) 1407/2013 to 18 December 2013 on the application Article 107(108) Treaty on the Functioning of the European Union to de minimis aid (Official Journal of the European Union L (2013), No. 352, p. 1 as amended).

State may grant one an economic operator during the period 3 years of de minimis aid at the level of 200,000 EUR, for road freight transport operators, this amount is maximum 100,000 EUR.

Investment fund and other reliefs

A special investment fund, unlike the Estonian CIT, can be combined with other reliefs. The taxpayer has the right to deduct donations, R & D relief, relief for bad debts, IP Box and other deductions from the tax base provided for in the PDAPU. The entrepreneur also has the possibility to deduct losses in previous years. In addition, the taxpayer benefiting from that preference may continue to apply a reduced CIT rate of 9%.

Expenditure excluded from costs

New inclusions from the cost of obtaining revenue have been added to the PDOPr, following the introduction of the provisions on the Estonian CIT and the special investment fund. Under Article 16(48a) and 48b of the PDOPrU shall not constitute costs:

1) expenditure on acquisition or production of fixed assets or write-downs on the consumption of fixed assets on the basis of Article 16a-16m PDOPrU — from that part of their value which was financed by the investment fund,
2) Fund write-offs — in part spent on fees, commissions and other costs associated with the holding of an investment account.

The legislator indicated that the above exemptions are intended to ensure that the categories of expenditure concerned do not reduce the tax base several times. In the case of an investment fund, there could be a deduction in costs and then depreciation of the asset purchased. If the measure is only partially financed by a copy of the Fund, the above-mentioned restriction applies only to the part which corresponds to the copy of the Fund.

Summary

The special investment fund is an alternative to the Estonian CIT model for granting tax preferences to entrepreneurs.

The taxable person who selects it may, after meeting the conditions set out in the PDOPrU, settle in the cost of obtaining the income already itself write-downs to a special investment account without requiring the physical purchase of a fixed asset.

The taxpayer will be able to invest in machinery, means of transport excluding passenger cars, equipment and other equipment categorized to the group 3–8 CST. The taxpayer has in principle 3 years. If he fails to meet this deadline, he will be obliged to adjust his income and pay the income tax due, including interest on late payment.

Tax payers interested in a special investment fund are required to set up a dedicated bank account. At the same time, it should be remembered that the fund can only be created from the profit of the company for the previous tax year. The fund will not be able to transfer money from loans, subsidies, loans and other financing tools.

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Legal basis

Article 12(1)(6b-6d), Article 15(1hb-1hf), Article 16(1)(48a)(48b), Article 28j, Article 28k PPOPU.

The article comes from the book C.H. Beck Publishing House Changes in Taxes and Accounting 2021 including anti-crisis shields (series: Law in practice, year: 2021) + CD, under the editor-in-chief of Professor Artur Hołday - Ksiegarnia.beck.pl.