Call-off stock – is a separate stock belonging to a EU VAT payer referred to in Article 97 of Polish VAT Act, Section 4, for storage, within the territory of the Country, of goods which belong to a value added tax payer, transported by him or for his benefit from the territory of a different Member State to a place where the taxpayer registered as a EU VAT payer who stores the goods, removes them and the right to dispose of the goods as their owner becomes transferred at the time of their removal.

Whether a person is independent of the enterprise represented depends on the extent of the obligations which this person has vis-à-vis the enterprise. Where the person’s commercial activities for the enterprise are subject to detailed instructions or to comprehensive control by it, such person cannot be regarded as independent of the enterprise. Another important criterion will be whether the entrepreneurial risk has to be borne by the person or by the enterprise the person represents.

1. In relation to the test of legal dependence, it should be noted that the control which a parent company exercises over its subsidiary in its capacity as shareholder is not relevant in a consideration of the dependence or otherwise of the subsidiary in its capacity as an agent for the parent. This is consistent with the rule in paragraph 7 of Article 5. But, as paragraph 41 of the Commentary indicates, the subsidiary may be considered a dependent agent of its parent by application of the same tests which are applied to unrelated companies.

2. The following considerations should be borne in mind when determining whether an agent may be considered to be independent.

3. An independent agent will typically be responsible to his principal for the results of his work but not subject to significant control with respect to the manner in which that work is carried out. He will not be subject to detailed instructions from the principal as to the conduct of the work. The fact that the principal is relying on the special skill and knowledge of the agent is an indication of independence.

4. Limitations on the scale of business which may be conducted by the agent clearly affect the scope of the agent’s authority. However such limitations are not relevant to dependency which is determined by consideration of the extent to which the agent exercises freedom in the conduct of business on behalf of the principal within the scope of the authority conferred by the agreement.

5. It may be a feature of the operation of an agreement that an agent will provide substantial information to a principal in connection with the business conducted under the agreement. This is not in itself a sufficient criterion for determination that the agent is dependent unless the information is provided in the course of seeking approval from the principal for the manner in which the business is to be conducted. The provision of information which is simply intended to ensure the smooth running of the agreement and continued good relations with the principal is not a sign of dependence.

6. Another factor to be considered in determining independent status is the number of principals represented by the agent. Independent status is less likely if the activities of the agent are performed wholly or almost wholly on behalf of only one enterprise over the lifetime of the business or a long period of time. However, this fact is not by itself determinative. All the facts and circumstances must be taken into account to determine whether the agent’s activities constitute an autonomous business conducted by him in which he bears risk and receives reward through the use of his entrepreneurial skills and knowledge. Where an agent acts for a number of principals in the ordinary course of his business and none of these is predominant in terms of the business carried on by the agent legal dependence may exist if the principals act in concert to control the acts of the agent in the course of his business on their behalf.

7. Persons cannot be said to act in the ordinary course of their own business if, in place of the enterprise, such persons perform activities which, economically, belong to the sphere of the enterprise rather than to that of their own business operations. Where, for example, a commission agent not only sells the goods or merchandise of the enterprise in his own name but also habitually acts, in relation to that enterprise, as a permanent agent having an authority to conclude contracts, he would be deemed in respect of this particular activity to be a permanent establishment, since he is thus acting outside the ordinary course of his own trade or business (namely that of a commission agent), unless his activities are limited to those mentioned at the end of paragraph 5.

8. In deciding whether or not particular activities fall within or outside the ordinary course of business of an agent, one would examine the business activities customarily carried out within the agent’s trade as a broker, commission agent or other independent agent rather than the other business activities carried out by that agent. Whilst the comparison normally should be made with the activities customary to the agent’s trade, other complementary tests may in certain circumstances be used concurrently or alternatively, for example where the agent’s activities do not relate to a common trade.

The intra-Community supply of goods shall be understood as a transfer of goods from the territory of the Country to the territory of another Member State. A movement of goods conducted by or for the taxpayer where such goods belong to this taxpayer’s enterprise and are moved from the territory of the Country to the territory of another Member State shall also be deemed as intra-Community supply of goods.

The intra-Community acquisition of goods shall be understood as an acquisition of the right to dispose as owner of goods, which as a result of such supply are dispatched or transported by or on behalf of the vendor, or the person acquiring the goods, to the territory of a Member State other than the territory of the Member State where the dispatch or transport was initiated. The intra-Community acquisition of goods shall also take place where a movement of goods is conducted by or for a payer of value added tax, where these goods belong to this taxpayer, and are transferred to the territory of the Country from the territory of another Member State.

Import of services – is the provision of services, in respect of the performance of which taxable is the recipient of the services, referred to in Article 17 of the Polish VAT Act, paragraph 1, subparagraph 4; ie legal persons, organisational entities without a legal personality and natural persons being recipients of services provided by taxpayers not having their registered office, a place of ordinary residence or a fixed establishment within the territory of the Country.

Distance sale to the territory of the Country – is a supply of goods dispatched or transported by a payer of value added tax or for his benefit from the territory of a Member State other than the territory of the Country into the territory of the Country, which is the country of destination for the goods being dispatched or transported, provided that the supply is made for the benefit of:

a) a taxpayer or a legal person not being a taxpayer within the meaning of Article 15, who is not obliged to settle intra-Community acquisition of goods or

b) an entity other than those specified in a) above, not being a taxpayer within the meaning of Article 15 and not obliged to settle intra-Community acquisition of goods.

Exportation of goods – is the removal of goods, confirmed by the customs office specified in customs regulations, from the territory of the Country beyond the territory of the Community in the course of activities referred to in Article 7, if the removal is carried out by:

a) the supplier, or for his benefit, or

b) an acquirer who has his registered office outside of the territory of the Country, or for his benefit, excluding goods removed by the acquirer for the purposes of providing equipment or supplies to recreational boats and private aircraft, or other private means of transport, referred to in the provisions of Article 16 of the Council Regulation No. 1777/2005 of 17 October 2005 laying down measures for implementation of Directive 77/388/EEC on the common system of value added tax (Official Journal of the European Union L 288 of 29 October 2005, p. 1) hereinafter referred to as „Regulation 1777/2005”).

Importation of goods – is importation of goods from the territory of a third country to the territory of the Country.

A permit is required in each case of real estate purchase by a foreginer in Poland, i.e. acquisition of ownership title or perpetual usufruct right to real estate on the basis of a legal transaction.

The following require a permit:

• Purchase of real estate,

• Purchase or taking up of shares in a commercial company which has a registered place of business in the Republic of Poland and is the legal owner or perpetual usufructuary of the real estate.

A permit is required:

• if, by purchasing shares in a company which is the legal owner or perpetual usufructuary of real estate, a foreigner will take control of that company, or

• if shares in an already-controlled company are acquired or taken up by a foreigner who is not the company’s shareholder. A controlled company is a company in which a foreigner or foreigners holds or hold, directly or indirectly, more than 50% of votes at the meeting of partners or the general meeting of shareholders or has or have a dominating position within the meaning of the Code of Commercial Partnerships and Companies.

Without a permit from the Minister of Internal Affairs and Administration no legal acts or entries of ownership titles or perpetual usufruct rights may be made. When special conditions are specified in the permit there is a need to present an evidence, that those conditions have been complied with.

Purchasing property by foreigners is regulated by the provisions of the Act of 24 March 1920 on Purchase of Real Estate by Foreigners with further amendments.

Within the meaning of the Act a ‘Foreigner’ is:

• An individual who is not a Polish national,
• A corporate entity having a registered place of business abroad,
• A partnership of persons referred to above, which does not have a legal personality, has a registered place of business abroad and is incorporated under laws of foreign countries,
• A corporate entity which has a registered place of business in the Republic of Poland and is controlled directly or indirectly by persons or partnerships referred to above.

There is a general rule that foreigners require a permit from the Minister of Internal Affairs and Administration to buy real estate.

The entities subject to CIT – the corporate income tax in Poland, are as follows:

• legal persons (in particular: limited liability companies, joint-stock companies, capital companies in organization);

partners being legal persons;

• foreign partnerships, if in the state where their seat is located they are treated as legal persons and are subject to unlimited tax liability there;
• tax capital groups.

CIT is, besides VAT, the most important tax levied on activities of legal persons in Poland. This is a flat-rate tax, in general imposed on income. The basic corporate income tax rate is 19% of the tax base. THera are special cases where the CIT Act provides for other rates. For more information about the CIT in Poland please visit https://polishtax.com/downloads/taxes/

Taxable person shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as ‘economic activity’. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.

In addition to the persons referred to the above, any person who, on an occasional basis, supplies a new means of transport, which is dispatched or transported to the customer by the vendor or the customer, or on behalf of the vendor or the customer, to a destination outside the territory of a EU Member State but within the territory of the European Union, shall be regarded as taxable person.

The chargeable event shall occur when the intra-Community acquisition of goods is made. The intra-Community acquisition of goods shall be regarded as being made when the supply of similar goods is regarded as being effected within the territory of the relevant Member State. In the case of the intra-Community acquisition of goods, VAT shall become chargeable on the 15th day of the month following that in which the chargeable event occurs. It should be noted that by way of derogation from the above VAT shall become chargeable on issue of the invoice provided for in Article 220 of the Directive 112, if that invoice is issued before the 15th day of the month following that in which the chargeable event occurs.