Tax Treaty Case Law around the Globe 2015

I. S. 102Introduction

This judgment concerned the classification of a share, which a non-resident partner had in a Polish partnership limited by shares (in Polish: spółka komandytowo-akcyjna, further referred to as: SKA). Similar forms of partnerships also exist in other jurisdictions, for example: in Belgium (CVA), in Denmark, in France (SCA), in Germany (KGaA) and in Italy. In order to understand the essence of the problem, it is essential to present a short characterization of the partnership, as it is regulated in Polish commercial and tax law.

Under the Polish commercial law, the purpose of the SKA is to operate a business under its own business name, with at least one partner liable without limitation to creditors for the obligations of the partnership (general partner - usually a Polish limited liability company), and at least one partner who is a shareholder (foreign or Polish company or individual). According to the Polish Commercial Companies Code, an SKA is a partnership without legal personality. Until the end of 2013, all partnerships including SKAs were treated as tax transparent.

During this time, the SKA was a very attractive form of investment in Poland because of favourabl...