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August 1, 2009updated 12 Apr 2017 4:34pm

Lease reclassification could spark litigation in Poland

From an economic point of view, the possibility of replacing a lessee no longer able to pay its instalments with one in a stable financial position and able to pay is a solution generally looked for by all leasing companies However, in the Polish leasing market, a change of both the lessee in a lease agreement, combined with the change in the classification of the leasing agreements that emanates from this, are still subject to many controversies

By Verdict Staff

From an economic point of view, the
possibility of replacing a lessee no longer able to pay its
instalments with one in a stable financial position and able to pay
is a solution generally looked for by all leasing companies.

However, in the Polish leasing
market, a change of both the lessee in a lease agreement, combined
with the change in the classification of the leasing agreements
that emanates from this, are still subject to many controversies.
Tax law regulations, in particular, are not particularly precise on
this point.

Whether the lease agreement needs
to be classified again following a change of lessee has been
subject to many interpretations by the tax authorities.

This occurs irrespective of whether
or not the agreement has met all the required conditions in order
to be classified as an operating or finance lease when it had been
concluded with the first lessee. Under Polish regulations, the
lease period is the most important factor from the perspective of
the lease agreement classification.

This issue has become a hot topic
when the change of the lessee regularly takes place in the
market.

In the past, the standpoints
adopted by the tax authorities were contradictory. Some of the tax
offices agreed that the mere change of the lessee did not result in
the obligation to re-classify the lease agreement.

Nevertheless, there were also
interpretations stating that, from a tax perspective, the lease
agreement after the change of lessee should be treated as separate
contract and the classification conditions should be analysed
separately. What should be stressed is the fact that recently such
negative approaches were repeated by the tax authorities.

Tax advisers generally agree there
is no basis to argue that the lease agreement which, from a civil
law perspective is still binding as only the lessee is replaced,
should be treated from a tax perspective as a separate contract and
therefore requires separate classification.

Joanna
Krzemiñska

The author is a tax adviser at
KPMG Poland

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