The European Court of Justice in an April 22 ruling, Drukarnia Multipress sp. z o.o. v Minister Finansów, (C‑357/13) has concluded that a Polish partnership limited by shares (‘PLS’) is a capital company within the meaning of Article 2(1)(b) and (c) of Council Directive 2008/7/EC concerning indirect taxes on the raising of capital, even though only some of its capital and members are able to satisfy the conditions laid down by that provision.
As a result, the Polish tax on civil-law acts can not be imposed if Drukarnia converts itself into a PLS and then increases its capital by a contribution in kind made up of shares in another PLS, shares in a share company, and shares in a limited liability company, the Court ruled.
In reaching its conclusions, the Court said that the fact that the PLS does not appear in point 21 of Annex I to Directive 2008/7 as one of the companies under Polish law which must be regarded as capital companies on the basis of Article 2(1)(a) of that directive does not prevent it from being recognized as a capital company.
Moreover the court said that the directive “contains nothing to indicate that the EU legislature intended to exclude from the concept of ‘capital company’ legal structures of a hybrid nature, such as the PLS, in which only some of the shares in the capital or assets can be dealt in on a stock exchange, or in which only some of the members have the right to dispose of their shares to third parties without prior authorisation and are responsible for the company’s debts only to the extent of their shares.”
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