Changes in the Personal Income Tax Act, which come into force on 1 January 2022, have brought preferences, announced for some time, for taxpayers who undertake to invest in Venture Capital funds and to invest in cooperation with such funds.
Jarosław Straś, Associate, KWKR Konieczny Wierzbicki i Partnerzy
Preferences for those investing in ASI or with ASI
This tax relief is a significant novelty in the Polish personal income tax regulations and is meant to refer to the existing legal regulations in this area e.g. in Great Britain, France, or Cyprus.
According to the new regulations, the relief allows deducting form the basis for calculating income tax an amount constituting 50% of the expenses incurred for the purchase or acquisition of shares in an alternative investment company (ASI) or in a capital company that is to be the subject of the investment. However, investors must hold at least 5% of the shares in the ASI, or at least 5% of the shares within 90 days of the taxpayer acquiring or taking up shares in the capital company.
The limit of the relief should not exceed PLN 250 000 in the tax year, and both the taxpayers who settle on general rules and those who are subject to the flat tax may take advantage of the exemption.
4 additional conditions on the way to achieving tax benefits
However, these are not all the requirements that those interested in potential tax benefits must meet. To qualify for the relief, they must take into account several other conditions:
- The source of funding of the ASI shares. A shareholder in ASI should be an entity that has acquired or taken up shares (stocks) in ASI financed in whole or in part from non-refundable European funds intended for Venture Capital investments in the territory of the Republic of Poland.
This is an important restriction, as a necessary factor in the case of an ASI – which invests in a capital company – is the source of financing of the capital of the alternative investment company. Shares (stocks) in an ASI should be acquired or taken up at least in part from European funds, which are mentioned in the Act on Public Finance. This means that for a private investor to benefit from the discussed relief, he must invest with Venture Capital funds supported by public funds (e.g. BRIdge Alfa or PFR).
- The taxpayer is obliged to conclude an investment agreement with ASI. The document defines the rights and obligations of both entities resulting from the acquisition by the taxpayer of shares (stocks) in ASI. Its alternative is an investment agreement, regulating a joint investment of ASI and the taxpayer in a capital company in which ASI acquires or takes up a block of at least 5% of shares (stocks).
- No taxpayer relationship between both the ASI and the investee capital company. Within 2 years preceding the date of first taking up or acquiring shares (stocks) in ASI or the capital company, these entities cannot be related to the taxpayer.
- Hold the shares for an uninterrupted period of at least 24 months. In the event of their disposal before the end of that period, the taxpayer is obliged to add the amounts deducted previously to the income for the tax year in which the disposal of shares in ASI or a capital company took place.
Amendment also in the CIT Act
Together with the discussed changes, the CIT Act was also amended with respect to taxation of income obtained by ASI from the disposal of shares in the capital of the company whose shares it sells.
Previously, alternative investment companies enjoyed an exemption covering income obtained in a tax year from the disposal of shares. However, they had to prove that the ASI which disposes of the shares had held them for at least 10% prior to the disposal date in the capital of the company whose shares were being disposed of, for an uninterrupted period of two years.
The amended CIT Act provides for the possibility for ASI to benefit from an exemption in a situation in which it holds 5% of the shares in the capital of the company whose shares it sells.
Changes are an opportunity for ASI
The relief concerns investments in cooperation with alternative investment companies. ASI is an investment vehicle that was introduced into the Polish legal order in 2016 through amendments to the Act on Investment Funds and Alternative Investment Fund Management.
An ASI may conduct its activities in several legal forms, including a capital company or a limited joint-stock partnership. It can therefore be seen that this is not a new organisational form – different from those already regulated, for example, in the Commercial Companies Code. An alternative investment company is distinguished by the obligation to have a manager; an entity that will dispose of at least the investment portfolio of the ASI and take responsibility for the risk related to the activity of the fund. The performance of the manager’s activity is, in turn, regulated by the act and requires – depending on the value of the assets included in the ASI investment portfolios – a permit from the PFSA or an entry in the Register of ASI Managers kept by the PFSA.
In addition to the above discussed CIT tax advantage related to the exit from an investment, an ASI as a capital company may benefit from a dividend exemption if it holds at least 10% of shares in the company for a continuous period of 2 years.