The latest position of the Ministry of Finance on the taxation by a natural person of the disposal of all rights and obligations in a personal company (OPIO) and the taxation of the withdrawal of a partner from a personal company confirms the distinction in the classification to the source of the proceeds of the sale of OPIO by a natural person and the occurrence of a person from a personal company.
On 4 July 2018 Undersecretary of State at the Ministry of Finance replied to the parliamentary inquiry No. 7447 whether the return on the sale of the OPIO should be settled outside the economic activity, as indicated by the National Tax Information, in the event of the sale of the OPIO it will be income from the property rights.
According to the position of the Ministry, all rights and obligations under civil law must be treated as property law. Hence, on the ground Act dated 26 July 1991 on income tax on natural persons (“the Personal Income Tax Act”), the income from the sale of the OPIO should be classified as income from property rights, according to Article 10(1)(7) with regard to Article 18 the Personal Income Tax Act This results in tax-scale income accounting 18% or 32%.
At the same time, it was pointed out that the sale of OPIO is something other than the occurrence of a natural person from a personal company, among others. Because the shareholder then receives receivables from the company’s assets, not as in the case of sale of the OPIO, from any entity third. Thus, the shareholder's income received from the company in the event of its withdrawal should be classified as income from non-agricultural business, in accordance with Article 10(1)(3) the Personal Income Tax Act
This distinction of qualification for different sources of revenue is confirmed by the case law of the administrative courts (NSA) dated 16 November 2010 reference no.. II FSK 1220/09, to 27 October 2011 reference no.. II FSK 858/10, to 19 August 2016 reference no.. II FSK 1863/14, whether WSA in Szczecin I SA/Sz 493/16, which accept the classification of income from the sale of the OPIO to the source of income from property rights.
An interesting issue in the event of a sale of the OPIO will be the taxpayer's finding the cost of obtaining income from such a transaction.
The direct costs of the transaction themselves as revenue costs, such as legal and transactional advice, and possibly notarial (although as is known to be sufficient in written form) should not raise doubts.
The cost of obtaining revenue appears to include the amount of the contribution made by the shareholder, including any increases in contributions if made. This is due, among other things, to the fact that tax authorities, as well as administrative courts, consider tax-neutral contributions to the company.
Author:
Aleksandra Księżyk
Director of the Legal Department in Warsaw. Legal advisor, from 2013 associated with Russell Bedford. He runs the Legal Department at the Chancellery Russell Bedford.