From 1 January 2021 there are rules on the taxation of real estate companies. For the purposes of this regulation, the definition of a real estate company that is located under Article 5a(49) the PIT Act and under Article 4a(35) CIT Act.
According to this definition, a real estate company must be understood as a non-natural person who draws up a balance sheet with at least 50% the market value of the assets is the market value of the real estate located in the territory of the Republic of Poland or the rights to such real estate. At the same time, the definition of a real estate company assumes that the market value of these properties exceeds 10,000,000 PLN or the equivalent of that amount.
When discussing the mechanism introduced, it is worth looking at the new rules, as they contain a significant modification of the liability of the payer who is a real estate company.
The definition of a real estate company in this way does not, in practice, extend the catalogue of taxpayers, but significantly changes the rules on tax collection by establishing a payer in this respect, to whom the real estate company itself will in certain cases be.
This will be the case in the event of divestment of shares (or rights of a similar nature) in such a company, where at least one of the parties to the transaction is not a resident of Poland, and the subject of the sale transaction is shares (shares) giving at least 5% voting rights or the right to participate in the profit of the company.
The new rules provide that when acting as a payer, a real estate company (and not a seller) will be required to collect and deposit 19% tax on the profit of that tax to the competent tax office within the time limit 20. the day of the month following the month in which the tax revenue was generated.
When discussing the mechanism introduced, it is worth looking at the new rules, as they contain a significant modification of the liability of the payer who is a real estate company. Definition of the payer included under Article 8 Tax Ordinance points out that the payer is a natural person, a legal person or an organisational unit not having legal personality, which is required under tax law to calculate and collect the tax from the taxable person and to pay it to the tax authority in due time.
The general rules governing the liability of the payer provide that a payer who has not carried out his duties is liable for the tax not collected or the tax collected and not paid, but the person acting as the payer will not be liable if the tax has not been collected by the taxpayer (not the payer himself).
It should be noted that this exemption from liability of the payer will not apply to real estate companies. In this case, the legislator has decided to introduce an exacerbated liability, which provides that even if the tax is not collected by the taxpayer, the unpaid liability, as the payer, will be borne by the real estate company.
This principle is provided for by the added provision Article 30(5a)(7) Tax Ordinance, which provides that the liability of the payer for the tax not collected or the tax collected and not paid may not be excluded or limited if it rests on the real estate company.
The changes made, including those relating to real estate companies in Poland, constitute the implementation of actions of the EU legislature, which aim to ensure that the profit from the sale of shares in a company having real estate as the main assets is taxed in the country where these properties are located.