Dear Readers,

 

We wish to present you the April issue of the newsletter by WBW Weremczuk Bobel & Partners.

First of all, we would like to recommend you the article on the planned changes regarding the obligation to make payments in transactions between business entities only via bank account  as well as the one on the regulations to come into effect on 1 July 2016  regarding the Uniform Control File which will introduce the possibility for taxpayers to provide tax authorities with information in an electronic form. 

Furthermore, we also discuss the decision of the Supreme Court regarding effective service of a resignation of a management board member from his of her position, which closes a long debate in this respect.

We also present information on abusive clauses used by SKOK Credit and Savings Union in their specimen agreements.  

 

We wish you a pleasant reading,

WBW Team

Draft amendment to the regulations regarding the obligation of business entities to make payments via bank account

On 10 March 2016, the Sejm received the governmental bill on amending the personal income tax act, corporate income tax act and the act on freedom of business activity in order to tighten the tax system.   

According to art. 22 of the currently binding act on freedom of business activity, entrepreneurs are obliged to make and receive payments connected with their business activity via a bank account if the other party of a given transaction is another entrepreneur and if the value of a single transaction exceeds the equivalent of EUR 15,000.    Nevertheless, violating this regulation does not cause any negative consequences.

Firstly, the bill provides for lowering the limit for cash payments from EUR 15,000 to PLN 15,000.  The lawmakers are of the opinion that lowering the said limit should increase the national budget revenue due to reducing the grey zone and decrease the number of fictitious transactions.

Furthermore, the proposed amendment introduces certain changes to the personal income tax act and the corporate income tax act according to which it will not be possible to recognise a given expenditure as a tax deductible cost if the payment is made in cash. This applies to the part of the payment which exceeds PLN 15,000.    According to the authors of the bill, the proposed regulations should increase the transparency of transactions and contribute to the growth of fair competition between business entities. 

In the justification to the said bill, we can learn that the proposed changes are a part of a general trend among other EU member states. At present, similar regulations apply in 16 EU countries, and maximum thresholds for transactions in cash are the following: EUR 3000 in France, EUR 1000 in Portugal, EUR 5000 in Hungary, EUR 2500 in Spain, EUR 5000 in Bulgaria and EUR 1500 in Greece.

The new regulations are to come into effect on 1 January 2017.

 

Olaf Szczurowski, lawyer

Regulations on the use of Uniform Control File to come into effect

On 1 July 2016, the new regulations of the Tax Ordinance Act of 29 August 1997 come into effect. The newly introduced art. 193 will enable tax authorities to request for all or selected accounting books and accounting documents via electronic methods of communication or on digital storage devices.

The data is to be transferred in the form of the Uniform Control File (UCF), which not only will make life easier for clerks and officers but it will also constitute a source of revenue for the state budget.  The Ministry of Finance defines the UCF as a special file format based on .xml, which all accounting books are to be kept in compliance with and which allows to generate documents in a uniform format.  The UCF will apply not only to the tax on goods and services (VAT) but also to other taxes and to verification of accounting books and tax registers in the wide sense.  The aim of the UCF is to enable taxpayers to transfer documents to tax authorities in an electronic form so as to make the whole procedure faster, more comfortable and, therefore, cost efficient. According to the estimate made by the Ministry of Finance, the introduction of the UCF should bring ca. 200 million PLN to the national budget in the first year of its operation.

As of July 2016, only large enterprises (as defined in the act of 2 July 2004 on freedom of business activity) maintaining their accounting books with the use of computer programmes will be under an obligation to generate the UCF.  In 2018, the obligation will be extended to medium, small and micro enterprises.  Files will be transferred in two forms - by means of a spacial gate created by the Ministry of Finance or on external data storage devices in case of documentation containing large amount of data.

Entrepreneurs will need to adjust their IT infrastructure to the requirements of the Ministry of Finance. Another problem may be the fact that UCF is composed of seven parts, each comprising 400 field to fill in with data from accounting books.  Generating a document which includes errors or the lack of possibility to provide the UCF to the tax authorities may be the basis for penal and tax liability.

Marek Bem, lawyer

 

Accepting a resignation from the position of a member of the management of a company

On 31 March 2016, the Supreme Court finally resolved the matter of effective delivery to a company a resignation of a member of the management board from his or her position.  So far, the service of the said statement was a disputable matter and often caused many problems in business practice.

 

The lack of uniform approach on this matter was to the detriment of both the company and the board member willing to resign.   The company acts through its governing bodies in accordance with the rule of representation provided for in its articles of association.  Therefore, any potential inaccuracies regarding the composition of the management board may hinder the operations of a given entity or even, in some cases, make such operations impossible.  

 

A member of the management board who wishes to resign from his or her position is, so to speak, ‘trapped’ in the company, which undoubtedly restricts his or her rights. It is also crucial form the point of view of such member’s liability towards creditors of the company. If an enforcement proceeding against the company is ineffective, a member of the management board is personally liable for the company’s debts.  Of course, a board member may fee himself from this liability but this would require taking certain actions and spending time and money. 

 

According to the legal doctrine and jurisprudence, the first way to effectively hand over a resignation form the position of the member of the management board is to make a statement to one of the remaining board members or to a commercial proxy (pursuant to art. 205 § 2 and art. 373 § 2 of the code of commercial companies).    The second way is to hand it over to the supervisory board.  At the same time, a different school of thought maintains that a board member should hand over his or her resignation to the body authorised to appoint management board members. 

 

The Supreme Court took the following stance on this matter: in accordance with applicable law, the company is represented by the management board and, therefore, handing over a resignation to another management board member is the most logical of the three solutions presented above. 

 

Paulina Szymańska, lawyer

Contractual provisions applied by SKOK Credit  and Savings Union in insurance and the rules on amending credit agreements entered into the list of abusive clauses

The Regional Court in Warsaw - Court of Competition and Consumer Protection (case no.:XVII AmC 1274/13) banned the following contractual clause applied by the SKOK Jaworzno Credit and Savings Unions:
 “In case of early repayment of the loan, unless the borrower states otherwise upon making the early repayment, the insurance coverage resulting from the group insurance shall be continued”. 

Furthermore, the court pointed out that the consumer may be unaware of the obligation to make the statement on discontinuing the insurance. Taking out the insurance by the borrower and making the SKOK Jaworzno the beneficiary of the insurance undoubtedly constitutes the lender's security.  In the opinion of the Court of Competition and Consumer Protection, if the loan has already been repaid, the borrower is no longer required to continue the insurance.

In the same decision, the Court of Competition and Consumer Protection also deemed the following contractual provision to be against good practice:  “The Union reserves the right to amend these Regulations. The Regulations may be amended only due to substantial reasons.  The substantial reasons referred to in section 1 shall be:  (...) 3) changing the rules and conditions of providing the services, in particular extending the functionality of the existing products and services, resignation from or changing the products or services on offer which affect granting or servicing loans/credit facilities”.

Furthermore, the court indicated that the law does provide for the possibility to unilaterally amend a contract due to vital reasons but only if such reasons have been clearly defined. A consumer who signs an agreement should know the exact circumstances in which the regulations may be amended, whereas the  examined clause does not include a full list of reasons justifying unilateral amendment of the agreement by the SKOK “Jaworzno” Credit and Savings Union.   The phrase “in particular” in the above-mentioned contractual clause suggests that the list of “substantial reasons” is open and, hence, could be subject to free interpretation, and the “substantial reasons” may be imposed by the party which has a stronger position.   The borrower is put in a situation with no way out - either he or she accepts the amendments to the agreement imposed by the other party or he or she has not repay the entire amount due at once.  The court stated that such practice on the part of SKOK “Jaworzno” is “unfair and disloyal towards the costumer and, therefore, against the rules of social coexistence and materially breaches the interest of the consumer”. Moreover, the Court of Competition and Consumer Protection stated that improving products or services or introducing the new ones can hardly be reasonably regarded as “substantial reasons” for amending a loan agreement.

The contractual clauses discussed above have been entered into the section of “financial services” of the register of abusive clauses of the Office of Competition and Consumer Protection under the number 6326 and 6325 on 9 March 2016.

Marta Szurek, lawyer

This Newsletter is for general informational purposes only. It is not intended and shall not be treated as professional advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
   

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