In 2023, the Head of KAS issued 20 safeguard opinions

Of these opinions, 13 were granted, which may indicate an openness to dialogue and the possibility of a positive outcome. 7 decisions were negative.

Now for a bit of specifics – when the answer was ‘no’ and when the opinion was granted.

Negative decisions were made in cases:

• Change of employment contract of a member of the Board of Directors
• Conversion of a company and transfer of shares after liquidation
• Establishment of a foundation in the Netherlands and placement of assets therein
• Recognition of costs between related parties
• Contribution of shares to a general partnership and its conversion into a limited liability company
• Employee incentive scheme
• Mutual transactions in the field of trademarks, among others

The opinions granted related to:

• The establishment of the family foundation, the contribution of property to it, the conduct of its activities and the receipt of benefits from the foundation by the beneficiaries
• Exchange of shares
• The withdrawal of a limited partner from a limited partnership, the transformation of the limited partnership into a limited liability company (sp. z.o.o.), which will opt for flat-rate taxation on partnership income
• Restructuring of a group of companies in the form of a merger of companies, the donation of shares of the parent company and voluntary redemption of shares of the merged company
• The establishment by a general partner of a limited partnership of a gratuitous annuity in favour of its limited partners withdrawing from the partnership
• Takeovers and mergers of limited liability companies
• Two-stage liquidation of a capital company as part of a group action
• Voluntary redemption of shares without remuneration to the shareholders of the company and the companies whose shares will be redeemed
• Reduction of depreciation rates for selected fixed assets, during the period in which the company benefits from public aid
• Mergers of companies by acquisition and the emergence of tax revenue in the acquiring company
• Transformation of a sole proprietorship into a limited liability company
• Division by spin-off
• Changes in the status of partners of a limited partnership

Let us recall a few facts about safeguard opinions:

• They have been in force in the Tax Ordinance since 15 July 2016.
• They concern the assessment of whether tax avoidance is taking place
• Are intended to protect the taxpayer against the application of an anti-avoidance clause
• Are issued at the request of the taxpayer
• They are issued by the Head of the National Tax Administration
• The Head of KAS has 6 months to issue them
• The fee for the application is PLN 20,000 and must be paid within 7 days of filing the application