The right to reimbursement of additional payments is a property right, which is closely connected with holding of shares. This means, that in case the shareholder who had made the additional payments sells the shares, the right to reimbursement of shares is transferred to the shareholder who acquired them. The right is due, irrespectively of the fact, who holds the shares, which were previously connected with making of the additional payments.

Both the Personal Income Tax and the Corporate Income Tax Acts provide, that the tax exemption shall apply to revenue earned on account of the reimbursement of additional payments made to the company, according to separate regulations, up to the sum in PLN as of the date of their actual contribution (Art. 12 item 4 point 21 of the CIT Act and Art. 21 item 1 point 51 of the PIT Act).

Only a few yers ago, the tax offices argued, that the revenues earned on account of the reimbursement of payments are subject to the tax exemption but only up to the amount of additional payments previously made by the very same shareholder. However, the reimbursement of additional payments to a new shareholder, who had acquired the shares from another shareholder is subject to tax, since it constitutes revenue on account of the property rights.

The above view, nevertheless, was not shared by the administrative courts, which explained that the acquirer of shares takes over all rights of the seller. Accordingly, the revenue earned by the new shareholder on account of the reimbursement of additional payments should be tax exempted up to the amount of the additional payments previously made by the previous shareholder. Only the possible surplus is considered as revenue form the property rights. The acquiring of shares, from which no additional payments were made, shall not entitle to the tax exemption. If such shareholder received reimbursement of shares, which would take into account his or her current right to the shares, covering the shares, from which no addtional payments werde made, the revenue would be subject to tax.

Starting from 2015 the amount of the tax exemption was made more precise.Namely, it is the value of the additional payment expressed in PLN as of the date of their actual contribution. This means that in case of the additional payments made in foreign currency, their estimate at the moment of their reimbursement may cause, that a surplus over the amount paid arises, and such surplus will be subject to taxation.

dr Janusz Marciniuk

Tax Advisor, Marciniuk & Partner

Dziennik Gazeta Prawna, 19.10.2015