Restriction of the company’s right to depreciation – a pro-fiscal interpretation by the MF
In a general interpretation, the Minister of Finance questioned the possibility of tax depreciation of a company in the case of acquisition of a business by way of datio in solutum (No. DD5.8203.5.2023). The situation in question is one in which the debtor fulfils his obligation to the creditor by surrendering the business.
As the legislation refers to the ‘purchase’ of a business, the Minister considered that it was only a classic sale and purchase agreement. Is this right?
According to Michal Thedy of Thedy & Partners, the fulfilment of an obligation through the surrender of a business is economically identical to the repayment of an obligation and the purchase of a business. Significantly, with the issuer the datio in solutum is taxed just like a sale.
Tax law is autonomous from other branches of law, in particular civil law. Concepts used in tax law may have a meaning different from their civil law meaning to ensure universality and equality of taxation (so that economically identical situations are not taxed differently).
Therefore, to consider that a ‘purchase’ cannot include an acquisition within the framework of a datio in solutum does not seem correct.