Successful completion of works on the act on the support of new investment projects
New reality for the investors — summary of the changes
SEZ Newsletter (2/2018) | 8 June 2018
On 1 June 2018 the President signed the act on the support of new investment projects whereby Poland as a whole becomes a special economic zone. The act will become effective 14 days after its publication in the journal of laws. In practice the support offered under the act will become available once the secondary legislation has been enacted which is expected this June.
Poland a special economic zone — what does it mean in practice?
The act on the support of new investment projects introduces a new way of supporting businesses which carry out investment projects and is intended to encourage businesses to invest all over Poland. The act gives access to the state aid to all companies investing in Poland, regardless of the location of the investment project.
The new regulations introduce specific provisions whereby more small and medium enterprises will enjoy tax exemptions.
The act is intended to replace the tax exemption scheme available to the businesses which invest in one of the 14 special economic zones which cover mere 25 thousand hectares of land.
The main novelty introduced by the act is that the territorial restrictions with regard to the availability of income tax exemptions have been abandoned altogether.
A business intending to carry out a new investment project will be offered aid based on a decision to provide support. The decisions to provide support will be given for a specific period of time: 10, 12 or 15 years, depending on the intensity of the state aid in a given region.
Some of the provisions included in the act governing the rules of the new scheme may raise difficulties of interpretation (e.g. how to settle state aid received based on two or more decisions or permits or both a decision and a permit, or the additional clause regarding tax avoidance) — here our commentary included in the earlier SEZ Newsletter remains valid.
Decision to provide support - criteria
Whether the decision to provide support will be favourable will depend on the satisfaction of qualitative and quantitative criteria which will be set out in the secondary legislation to the act.
The secondary legislation is underway. In its current wording (published by the Government Legislation Centre at the end of May 2018) it sets out that in order to receive the state aid an investor will have to satisfy the following criteria:
A business which has applied for the aid, depending on the unemployment rate in the district (powiat) in which the project is to be carried out and the size of the business, must satisfy one of the following quantitative criteria:
The above criteria are diverse and diverge depending on whether the investor intends to invest in services or industrial production. Not all of the above conditions must be met by the business seeking the support.
The qualitative criteria are considered to be met if a 60 percent threshold has been met, i.e. 6 out of 10 points have been awarded. The requirements will be reduced as the intensity of the state aid available in Poland increases: 50 percent for areas with 35 percent intensity of the state aid and 40 percent for areas where the intensity of state aid is 50 percent.
The state aid available under the new scheme (just as the aid offered under the act on special economic zones) will take the form of an income tax exemption. The amount of tax that the business will be allowed not to pay will be calculated as the product of eligible capital expenditure and the aid intensity set out for the region in which the investment project will be carried out. The proposed implementing regulation to the act on the support of investment projects sets out the following intensity of available aid:
Higher tax exemption thresholds are available to SME as the proposal of the regulation sets out that the maximum aid intensity is increased:
• by 20 percentage points for small enterprises, and
• by 10 percentage points for medium enterprises.
The most important change introduced by the act on the support of new investment projects is the possibility to locate the investment project in any area suitable for the investor (not only within the special economic zones). This way a lot of investment areas which so far have been less appealing due to their location outside the zones may now become available.
It should be acknowledged that the legislator did not change the method of calculation of the tax credit itself and therefore the vast numbers judicial decisions given during the 20 years of the operation of special economic zones will remain useful.
This way the investors claiming the tax credit will have more legal certainty.
In our opinion the new regulations favour large investments in production industry and services centres and therefore it may be particularly appealing to foreign investors. On the other hand, however, thanks to the changes introduced at the very last moment, when the bill was discussed in the Sejm, the scheme may support reinvestment (expansion of the existing plants), i.e. domestic investors. Most likely, just as it was the case with the special economic zones, as far as the number of investors is concerned Polish companies will prevail, but in terms of the volume/value of investment, foreign companies will predominate over the local ones.
We are now waiting for the act and the implementing regulations to become effective — the latter are set to enter into force as soon as the act is published and enacted.