MDR – another general ruling issued by the Minister of Finance

Polski

The Minister of Finance and Economy has once again undertaken interpretation of the MDR regulations (Section III, Chapter 11a of the Tax Ordinance) by means of the general tax ruling no. DTS5.8092.3.2025 (general ruling dated 29 July 2025 on the qualification of actions consisting in increasing the share capital of a capital company under the provisions on tax schemes under the Act of 9 September 2000). 

As was the case with tax schemes concerning operating lease agreements (which we discussed in detail in our newsletter dated 7 January 2025), despite the initial interpretative doubts during the initial stage of application of the MDR regulations, it is now commonly accepted that the emergence of information obligations under the MDR provisions in such cases depends on the circumstances of the given matter, and in particular on the motives of the entities participating in the share capital increase of a capital company. 

The above has been confirmed in the general ruling dated 29 July 2025. The Minister of Finance and Economy explained that an increase of share capital by means of a cash contribution will constitute a tax scheme if the shareholders, wanting to reduce the tax base of civil law activities tax, do not increase the share capital by the full value of the cash contribution. 

The above seems to be in line with the practice of applying the MDR regulations, according to which allocation of a cash contribution to share premium constitutes a tax scheme in the absence of any justification for such action other than tax motives. 

At the same time, the Minister confirmed, which is currently not subject to significant doubts under the market practice, that the preparation of documentation related to the increase of share capital/premium is, by definition, based on highly standardized documentation, and the documentation prepared for one capital company can also be used to carry out the same operation for another capital company. As indicated: “this is a generally known fact; nevertheless, under the provisions of Section III Chapter 11a of the Tax Ordinance, it may lead to the conclusion that the generic hallmark specified in Article 86a § 1 point 6 letter d of this Act is met.” 

Notwithstanding the above, the Minister of Finance and Economy indicated that an increase of the share capital of a capital company, which consists in covering the increased capital with a non-cash contribution (subject to VAT or exempt from this tax) (due to the lack of taxation with civil law activities tax), will not constitute a tax scheme. 

At the same time, if the increased share capital is covered by a cash contribution, and shares are acquired at a price higher than their nominal value (or, in case of a share issuance, a surplus arises over the nominal value of the shares), where civil law activities tax is paid only on the amount by which the share capital was increased, such an action will not constitute a tax scheme, provided that the obtained surplus does not allow to take up a greater number of shares (e.g. in a situation where the nominal value of a share is PLN 500 and it is covered by a contribution of PLN 750).   

In case of any questions regarding the discussed issues, we remain at your disposal.