Michał Gosek

Tax adviser (Poland)
Associate Partner
Phone: +48 61 624 49 39

The Act of 28 November 2014 amending the Special Economic Zones Act (hereafter: "SEZ Act") and some other acts was proclaimed on 22 December 2014. The amendment became effective on 6 January 2015 and introduced numerous changes which may affect the operations of enterprises doing business in Special Economic Zones in Poland (SEZs). The most important changes concern:

  • the time limits for storing documents by the zone enterprises; 
  • the statute of limitations for claims referring to the repayment of the state aid; 
  • the rules of closing business by enterprises which fail to meet the requirements specified in their zone permit. 

According to Article 17(5) CIT Act, in the event the permit to operate in a SEZ in Poland is revoked, the taxpayer loses the right to tax exemption and is obliged to pay the tax for the entire period of enjoying the tax exemption (this does not apply to permits issued before 01/01/2001, in which case the enterprise that lost the permit must pay the tax for the period from the time in which the circumstances leading to the revoking of the permit arose).

Pursuant to the new provisions, the entities doing business in a Special Economic Zone and enjoying the CIT exemption are required to keep the tax records, store those records and their underlying documents until the statute of limitations for claims referring to the repayment of the state aid expires. The enterprises which enjoy the state aid for the creation of new jobs are obliged – as withholding agents – to store the documents related to the collection of taxes, other state budget revenues and those related to the state-run specific purpose funds. The documents in question should be stored until claims concerning the repayment of the state aid expire.

The amendments also stipulate that claims referring to the repayment of the state aid expire after 10 years, as counted from the end of the calendar year in which the enterprise used the state aid granted in the form of an income tax exemption

The issue of the request to declare a zone permit expired was subject to amendments as well. In light of the previous wording of Article 19 SEZ Act, the zone permit expired upon the lapse of the period for which a given zone was established, or as a result of the decision issued by the Minister of the Economy at the request of an interested enterprise. The Minister of the Economy could also revoke the permit if all relevant requirements were met. 

The difference between the revoking of the permit by the Minister of the Economy and its expiration was that the revoking was a sanction and required the enterprise to repay the state aid in the meaning of Article 17(1)(34) CIT Act. Following the literal interpretation of this regulation, in case of the permit expiry the enterprise would not be obliged to repay the state aid it received. The above opinion was backed by numerous advance tax rulings issued by the authority of the Minister of Finance and, unfortunately, obtained approval of neither the Ministry of the Economy nor the Office of Competition and Consumer Protection as it was found to contravene the state aid rules. 

The amendment to the SEZ Act has limited the group of enterprises entitled to the request to declare a zone permit expired. The request in question may be filed exclusively by the taxpayers who:

  • have not used any state aid granted according to the act under that permit or
  • have received state aid granted according to the act and have met all requirements specified in the permit and in the state aid terms.

In other cases, the enterprise will have the right to file the request for permit revocation. However, the state aid it has received will have to be repaid. It may be of some consolation that the enterprises will not have to wait until all statutory requirements are met for the permit to be revoked ex officio, which will let them cut interest on tax arrears.

Pursuant to the amending act, the cases opened before its provisions concerning the grounds for permit expiry, change or revocation became effective will be governed by the old regulations. The state aid granted before the amending provisions became effective will be subject to the new regulations, provided the claims referring to repayment of the state aid did not expire before the effective date of the new regulations.

In case of further questions, please do not hesitate to contact us. Our tax advisers in Rödl & Partner offices in Gdansk, Gliwice, Cracow, Poznan, Warsaw and Wroclaw will gladly review your documentation related to your investment in the Special Economic Zone in Poland and propose a solution to minimise your tax risks. We are also on hand to answer any other tax-related questions you may have. Our offices offer legal support with conducting business within a SEZ and with any other aspects of your operations. We take this opportunity to encourage you to contact us.