The Voivodeship Administrative Court in Poznań in its judgment of 28 Jue 2011 case file I SA/Po 210/11 held that a subsidiary company is allowed to depreciate trade marks that were transferred to it as an apportionment, starting from the first day of a month, after one month the Polish Patent Office has granted the right of protection for these signs.
Archive for: Polish Act on Legal Persons Income Tax
The Supreme Administrative Court in its judgment of 27 May 2009 case file II FSK 181/08 held that a company is allowed for depreciation of trade mark rights after the Polish Patent Office grants the right of protection.
The Polish company conducts its business based mainly on providing IT services and sales of software and hardware. The Company enquired the Tax Office whether the fees paid by it to the contractors based in the U.S. and the Netherlands in connection with making available of software, are subject to the flat tax at source of the distribution of software, i.e. in Poland.
The Voivodeship Administrative Court in its judgment of 13 September 2010 case file III SA/Wa 1008/10 held that fees paid for the use of a computer program does not fall within the definition of royalties specified in the agreements on avoidance of double taxation with Holland and the USA. Therefore can not be taxed in Poland.
The Polish financial services company decided to increase sales of its services, by providing to clients and potential clients with different types of advertising materials bearing its logo. These materials are worth no more than 100 PLN each and are distributed to customers and potential customers during promotional events, sponsored events, as well as individual meetings.
The Company requested for individual tax interpretation. In its view, costs of these advertising materials could be included in cost of revenue. The Director of the Tax Chamber in Warsaw in its decision of 8 July 2010 case file IPPB5/423-249/10-4/PS ruled that in this case it is important to determine whether the disputed expenses are costs of advertising, or representation. The value of gifts does not decide whether these expenditures are deemed as advertising or representation. The circle of bestowed persons and the circumstances in which these materials were distributed are the most important factors.
The Director considered that the expenditure incurred on the purchase of low value advertising materials that were handed over to customers or potential customers in events such as public fairs, promotional events, etc. may be deemed as deductible costs within the meaning of Article 15(1) of the Polish Act of 15 February 1992 on the Legal Entities’ Income Tax – LEIT – (in Polish: Ustawa o podatku dochodowym od osób prawnych) consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments.
1. The deductible costs shall be all costs incurred in order to derive revenues, with the exception of costs referred to in Article 16(1) Costs incurred in foreign currencies shall be converted into Polish zlotys in accordance with the average exchange rates as announced by the National Bank of Poland on the date when the cost was incurred. If costs are denominated in foreign currencies, and there is a difference in the currency exchange rates between the date of entering those costs in the books and the date of payment, those costs shall be increased or reduced, as appropriate, by the differences arising from the application of the currency selling rate as at the date of payment, set by the bank, whose services were used by the person who incurred the cost, and the application of the average exchange rate as announced by the National Bank of Poland on the date of entering the costs in the books.
In the case of the transfer of gifts of higher value to selected contractors or potential contractors in order to create the best impression, the expenditures for the purchase of these gifts have representative nature, and thus are not deductible under the Article 16(1) point 28 of the LEIT.
The Supreme Administrative Court in its judgment of 25 August 2010 case file II FSK 627/09 held that only a registered trade mark may be depreciated. The Court ruled according to the provisions of Article 16b(1) pt. 6 of the Polish Act of 15 February 1992 on the Legal Entities’ Income Tax – LEIT – (in Polish: Ustawa o podatku dochodowym od osób prawnych) consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments.
Art. 16b. 1. The following intangible assets, acquired and fit for commercial use as at the date of acceptance for use, shall be depreciated, subject to Article 16c:
1) the cooperative ownership right to an apartment;
2) the cooperative ownership right to commercial premises;
3) the right to a single-family house in a housing cooperative;
4) copyright or related proprietary rights;
6) rights to: inventions, patents, trademarks, designs;
The SAC noted although that the LEIT does not provide the definition of registered trade mark or trade mark itself. However, not the same “mark”, but right of protection to the trade mark, which must meet the criterion for classification as a property right (intangible assets), is subject to depreciation.
The Supreme Administrative Court in its judgment of 28 August 2009 case file II FSK 412/08 held that in case of depreciation of trade mark rights in tax practice, according to the established case-law, it is assumed that the trade mark rights are meant only as rights to a registered trade mark, i.e. sign, in respect of which a right of protection has been granted by the Polish Patent Office. Unregistered trade marks, including the application for trade mark registration, are not deemed as such rights. Only after the registration of such a trade mark, it may be entered in the register of intangible assets and then depreciated for tax purposes.
The Supreme Administrative Court in a judgment of 20 November 2009, case file II FSK 1003/08, confirmed the rule that the Polish taxpayer is allowed only for the depreciation of the registered trade mark. This judgment was based on provisions of Article 16b(1) pt. 6 of the Polish Act of 15 February 1992 on the Legal Entities’ Income Tax – LEIT – (in Polish: Ustawa o podatku dochodowym od osób prawnych), consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments.
The following intangible assets, acquired and fit for commercial use as at the date of acceptance for use, shall be depreciated, subject to Article 16c:
(6) rights to: inventions, patents, trade marks, designs.
The SAC ruled that the priority to obtain the right of protection for a trade mark which is determined according to the date of filing of a trademark application with the Polish Patent Office (PPO) is something different than the possibility of introducing such a right in the records of intangible assets, which is allowed by the LEIT only after the PPO issued a positive decision on the grant of a right of protection for a trademark. Such a decision is always taken after having established that the statutory requirements for the grant of the right have been satisfied. Having only a priority does not guarantee such situation will take a favourable turn.
See also “Tax law, case I SA/Rz 249/09“.
The assembly of shareholders of a Polish company (spółka z ograniczoną odpowiedzialnością – a legal concept similar to the limited company), following a resolution, decided to increase the company’s share capital by the creation of new shares. The new shares were covered by the shareholders in the form of an enterprise (the enterprise as as a subject of rights). One of the components of the enterprise was a trade mark valued at 750,000 PLN (around 179,016,307 Euros). The trade mark was entered in the company’s books in 2000 and the company started depreciating this asset in 2001 based on the provisions of Article 16b(1)(6) of the Polish Act of 15 February 1992 on the Legal Entities’ Income Tax – LEIT – (in Polish: Ustawa o podatku dochodowym od osób prawnych) consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments.
The following intangible assets, acquired and fit for commercial use as at the date of acceptance for use, shall be depreciated, subject to Article 16c:
(6) rights to: inventions, patents, trade marks, designs;
This action was called into question by the Director of the Tax Office, who duly imposed tax (19,006 PLN for year 2002). The company appealed against this decision to the Director of the Tax Revenue Audit Office, but it was upheld. The findings made in the course of the investigation showed that, both in 2002 and in an earlier period of time, the sign in question had not been granted the right of protection, having been applied for at the Polish Patent Office on 8 November 2000. The company filed a complaint.
The Voivodeship Administrative Court in Rzeszów in its judgment of 21 May 2009 case file I SA/Rz 249/09 ruled that provisions of the LEIT allow only for the depreciation of the registered trade mark, since mere priority (the right of priority) to obtain a right of protection for a trade mark is not the right which is explicitly mentioned in article 16(1) of the LEIT. The Court emphasized the fact that the acquisition of rights to a trade mark occurs within the system of constitutive registration, the law-creating nature of which is attributed to “an act of registration” made by the Polish Patent Office in the form of the administrative decision. The only exception to this rule is the acquisition of rights to well-known trade marks, the protection of which does not depend on the registration – but it was not the issue of this case.
In the letter of 10 March 2006, file PB3/GM-8213-12/06/144, published in Biuletyn Skarbowy of 2006, no 2, pp. 21-22, the Undersecretary of State of the Ministry of Finance gave the official interpretation regarding tax consequences associated with the use of free software programs, addressed to the Directors of all the Tax Offices and Chambers. This letter was issued in order to ensure uniform application of the law under article 14 § 1 point 2 of the Tax Code, to convey an explanation of article 12(1) point 2 of the Polish Act of 15 February 1992 on the Legal Entities’ Income Tax – LEIT – (in Polish: Ustawa o podatku dochodowym od osób prawnych) consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments, on the tax consequences associated with the use of free software.
Art. 12. [General notion of revenue] 1. Revenues, subject to paragraphs 3 and 4 and Articles 13 and 14, shall be, in particular:
2) the value of things or rights received free of charge or partially free of charge, as well as the value of other free-of-charge or partially free-of-charge performances, with the exception of performances linked with utilization of fixed assets received by budgetary establishments, subsidiary undertakings of budgetary entities, public utility companies 100% owned by local government bodies or their associations from the State Treasury, local government units or their association for gratuitous management or use;
In many cases during the economic activity, taxpayers benefit for purposes of the activities of the publicly available and free of charge computer programs that are available for instance via the Internet for all users. Although most of the software for these operating systems is free, however there are exceptions in the form of commercial software. The rule, however, is that the use of such programs are not related to any fees for their purchase, or license fees.
Provision of Article 12(1) point 2 of the Act on the Legal Entities’ Income Tax recognizes as revenues, the value of obtained free-of-charge or the value of partially free-of-charge things and rights. However, article 12 (5 – 6a) of the Act on the Legal Entities’ Income Tax sets, the value of unpaid or partially-paid performances and the value of free or partially-free acquired things or rights, which are the subject of income tax.
5. The monetary value of things or rights received free of charge shall be determined in accordance with market prices applicable in trading of things or rights of the same type and quality, in particular taking into account their condition, degree of wear, as well as the time and place of obtaining them.
5a. The value of partially paid for things or rights constituting taxpayer’s revenues shall be the difference between the value of those things or rights, determined in accordance with the principles laid down in paragraph 5, and the consideration paid by the taxpayer. The provision of Article 14.3 shall apply, as appropriate.
6. The value of gratuitous performances shall be determined in the following manner:
1) if the performance concerns services included in the commercial activities of the performing party – at prices applied to other recipients;
2) if the performance concerns purchased services – at purchasing prices;
3) if the performance concerns letting the use of premises – at the equivalent of the rent that would have been due under a potential lease contract for those premises;
4) in other cases – in accordance with market prices applied in the performance of services or letting the use of things or rights of the same type and quality, taking into account their condition, degree of wear, as well as the time and place of letting them for use.
6a. The value of partially paid for performances constituting taxpayer’s revenues shall be the difference between the value of those performances, determined in accordance with the principles laid down in paragraph 6, and the consideration paid by the taxpayer. The provision of Article 14.3 shall apply, as appropriate.
The provision of article 12(1) point 2 of the Act on the Legal Entities’ Income Tax should be taken together with article 12(6) of the LEIT, which defines how the value of income from unpaid performances is determined. This is established case-by-case. For instance it may be:
- the price charged to other customers – if a subject of a performance are services being a part of the business of an entity that is making the performance,
- the market price that is used for the same kind of rights, taking into consideration, in particular, degree of wear, as well as the time and place of letting them for use – other than those referred to aticle 12(6) points 1-3 of the LEIT.
In the case of rights obtained free of charge, the income is determined on the basis of prices used in the market turnover of rights of the same kind, in particular, their condition and degree of use and the time and place of such use. Tax law provisions establishing the value of tax revenue for the free performances received, do not foresee a situation where appropriate performance is free for all stakeholders.
Article 12(6) of the LEIT includes cases in which there is an opportunity to compare the value of gratuitous performances to other pecuniary performances that were made by the taxpayer. The possibility of determining the value of “comparable” performances of given kind, in the case of the free software that is available to all on equal (free-of-charge/gratuitous) basis, can not be performed, and thus there is no basis for determining the value of income.
If certain performances (including the transfer of rights) are inherently free-of-charge to all taxpayers, and not an individual case that would be applicable to the individual entity, it is not allowed to establish tax revenues in connection with the occurrence of such events, as referred to article 12(1) point 2 of the LEIT. This does not mean, however, that in assessing the possible tax consequences associated with the use of such software, there is no need to examine all the circumstances connected with it. Each case therefore requires individual analysis.
These explanation of the tax consequences associated with the use of the free software, apply as appropriate to taxpayers of income tax of individuals engaged in non-agricultural economic activity (art. 14 ust. 2 pkt 8 ustawy o podatku dochodowym od osób fizycznych).