New clauses introduced to international taxation treaties

The past few years have witnessed certain adjustments to Polish policy with respect to double taxation treaties. 

The new features include real estate clauses whereunder a given country may tax income from sale of shares or of comparable legal titles (e.g. perpetual usufruct) where more than 50% of the value of the same is accounted for, whether directly or indirectly, by real estate located in that country. There is a consistent tendency towards taxation at source (subject to a 5% rate) of trans-border interest payments while applying full exemptions to interest on credit facilities or bank loans paid to the state, to regional or local subdivisions of the state, or to financial institutions owned or controlled by the state (or paid in connection with a credit facility or loan guaranteed by any such entity).

Current Polish tax policy runs contrary to the OECD Model Convention (to which Poland has voiced reservations) in expanding the definition of licence receivables to include payments for use, or the right to use, of industrial, commercial, or scientific assets (e.g. on the basis of a trans-border leasing agreement).

The Polish tax authorities are also moving to expand the scope of proportional posting to capital gains and to business profits (as regulated in various double taxation agreements), and – at least occasionally – to income from paid employment and to directors fees; the more traditional approach was to apply proportional posting to dividends, interest, and receivables. There is also the new practice of supplementing double taxation treaties with switch-over clauses which, until now, were not used in treaties having Poland as a party. Such a clause enables unilateral change of the basic method for avoiding double taxation from exclusion with progression to proportional posting in situations where application of the former method would result in no tax being payable in either jurisdiction.

The year 2012 saw the addition of switch-over clauses to the double taxation treaties between Poland and, among other countries, Luxembourg, Norway, and Slovakia.