New principles of taxation of in-kind contributions

New provisions of the Personal Income Tax Act ("PIT Act") and of the Corporate Income Tax Act ("CIT Act") have been in force since 1 January 2018. The Act amends, among other things, the rules of accounting for transactions involving in-kind contributions to companies liable to income tax (the "company" or "companies"). The changes apply to PIT and CIT taxpayers.

Legal status since 1 January 2017

According to the regulations effective since 1 January 2017, the revenue of any person who made an in-kind contribution other than an enterprise or an organised part thereof was the contribution's value specified in the company's constitutional document or in a similar instrument. If that value was lower than the market value of the enterprise, or if it was not specified in the company's constitutional document (or a similar instrument), the revenue was the market value of the contribution as of the date of the transfer of title to the contributed asset.
From the income tax perspective, it was no longer so important which part of the contribution was earmarked for the share capital and which for capital reserves (agio).

Moreover, the Act provided for a significant change which did away with restrictions on the tax-deductibility of depreciation charges on the part of the initial value of tangible and intangible assets, acquired in the form of in-kind contribution, which had not been appropriated for the company's share capital (repeal of Article 16(1)(63)(d) of the CIT Act).

However, pursuant to the transitional regulation, the exclusion under Article 16(1)(63)(d) of the CIT Act did apply if the revenue of the person who made an in-kind contribution from taking company shares in return for that contribution was determined on the basis of Article 17(1)(9) of the PIT Act or Article 12(1)(7) of the CIT Act in the wording valid until 31 December 2016. 

Legal status since 2018

The Act amending the Personal Income Tax Act, the Corporate Income Tax Act and the Act on Flat Income Tax on Certain Revenues Earned by Natural Persons (Journal of Laws of 2017, item 2175) became effective on 1 January 2018.

A significant change it brought about is introducing capital gains as a new, separate revenue source.
This means in practice that capital losses may be offset only against gains from the same source, i.e. against capital gains.

Capital gains include, among others, gains from:

• dividends,
• redemption of shares or reduction of their value,
• undistributed profits in incorporated companies which are transformed into partnerships,
• securities and derivative instruments,
• interest on participation loans granted to a legal entities or partnerships limited by shares,
• other capital gains.

Thus any losses from the disposal of the acquired receivables may not be offset against income from operating activities. In short, if a taxpayer earns income from operating activities and incurs a loss from the disposal of the above-mentioned receivables, he may offset that loss only against his capital gains. The deduction rule remains unchanged – the taxpayer may deduct the loss from the income obtained in the next five tax years, but he may not deduct more than 50 % of the loss amount in any of those years. Implications of the new rules for the taxation of in-kind contributions.

The regulations introduced in 2017 have significantly increased the tax burden of PIT and CIT taxpayers making in-kind contributions other than an enterprise or its organised part to a company. In view of the legislation applicable since 1 January 2017, before making an in-kind contribution to a company, one should consider seeking a reliable expert appraisal to ensure the correct contribution value so as to minimise the tax risk in this regard. Such an appraisal will allow avoiding any disputes with tax authorities in respect of the determination of the market value of the in-kind contribution.

Due to the change applicable since 1 January 2018 the taxpayer must also classify the costs of purchasing the in-kind contribution to the correct revenue source.

If you are interested in more details, we will be glad to help you. We will also assist you in CIT, PIT and VAT matters. Our tax advisers in Rödl & Partner offices in Cracow, Gdansk, Gliwice, Poznan, Warsawand Wroclaw will also answer any other tax-related questions that you may have. Feel free to contact us.