The Act on Reducing Certain Administrative
Burdens in the Economy of 16 November 2012
(Journal of Laws no. 1342 of 30 November 2012)
came into force on 1 January 2013. The amendments
include among others simplification of the tax
system, making interpretations issued by public
authorities open to the public, new principles
governing settlement of pro-family and Internet tax
benefits, and numerous facilitations for undertakings
relying on the leasing on assets.
The good news is above all the reduction of the
mandatory term of the leasing agreements for real
property subject to depreciation. Until the end of
2012 they had to be concluded for at least 10 years.
The legislators decided that the term was too long,
thus making it difficult for the lessee to assess the
risk involved, and reduced it to 5 years. These
amendments resulted in corresponding amendments
to the provisions of the Act on Personal Income Tax
(Article 23b(1)(1)) and the Act on Corporate Income
Tax (Article 17b(1)(1)).
The provisions governing assignment of the leasing
agreement were also refined. Under the previously
effective regulations, in the event of replacement of
the parties to the agreement, the term of the leasing
agreement had to be extended under pain of the
agreement losing its operating lease status (beneficial
tax-wise as lease payments are tax deductible). This
is no longer necessary under the new regime, as long
as the other provisions of the agreement are not
amended. A similar interpretation was adopted
earlier by courts: among others, the Supreme
Administrative Court in its judgement of 18 April
2012 (case file II FSK 1755/10, LEX no. 1133362) and the Regional Administrative Court in Warsaw in
its judgement of 15 November 2012 (case file III
SA/Wa 649/12, Gazeta Prawna 2012/223/3).
The facilitations introduced covered also conclusion
of further leasing agreements. Above all, the value of
the object of a further leasing agreement is now
based on its market value at the time a subsequent
agreement is concluded. It is irrelevant for the
agreement whether the lessee under the previous
agreement or another entity becomes a party to the
agreement. Under the previous regulations for a
further leasing agreement to be treated as an
operating lease, the sum of lease payments agreed
less applicable tax on goods and services (VAT) had
to correspond at least to the initial value of the fixed
or intangible assets concerned.
One of the most significant amendments is the newly
introduced availability of the right of perpetual
usufruct as the object of a leasing agreement. Under
the previous regime, leasing agreement could be
concluded for fixed and intangible assets subject to
depreciation and for land not subject to depreciation.
The rationale for the amendments stresses the
difficulties that undertakings concluding leasing
agreements for a building situated on land in
perpetual usufruct came up against. In such a
situation, two agreements had to be concluded: a
leasing agreement for the building and a tenancy
agreement for the right of perpetual usufruct. In this
particular case, the amendments covered the
provisions of Article 23a(1) and Article 23i of the
Act on Personal Income Tax and Article 17a(1) and
Article 17i of the Act on Corporate Income Tax. It
must be noted that leasing agreements for perpetual
usufruct will be settled for taxation purposes in the
same manner as lease agreements for freehold land,
thus making mutual settlements between the parties
much easier.
Summing up, it must be concluded that the
amendments to legislation outlined above go some
way towards meeting the expectations of the
business community. The added flexibility of the
regulations on leasing will without any doubt make
this vehicle for financing business operations more
attractive which will most likely increase its
popularity among undertakings.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal
developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of
action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser
should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.