📋Contents
First of all, let's establish what the situation looked like before the introduction of the "Polish Order". For this purpose, we recommend reading our article "
Commercial premises rental tax – what is worth knowingIt is also worth reading for the reason that it details issues which it would be pointless to duplicate in this article, yet which remain relevant at the same time. The legislature is constantly introducing modifications to the Polish Deal that may affect the content of the advice we provide in the text below. Although we try to respond on an ongoing basis and adapt it to the current legal status, we cannot guarantee its timeliness.
For the most up-to-date advice on all matters relating to real estate rental, please visit us initial consultation, at our law office or online.
As part of our practice
Real Estate Law Firm We handle dozens of commercial property rental cases every year. We provide professional advice by drafting and negotiating lease agreements, as well as analysing lease agreement drafts sent by the other party.
Therefore, alongside inviting you to make use of our legal and business support in property rentals, allow us to share below some of the knowledge gathered by our Team regarding the taxation of revenue from lease agreements.
Tax on the rental of commercial premises from 2022 – private lease or as part of a business activity?
Considerations regarding tax settlements in the context of tenancy should begin by determining the type of tenancy we are dealing with. Two options are available – private tenancy or tenancy within the scope of business activity. In both cases, the settlement rules are somewhat different.
Although the very issue of classifying a given tenancy relationship into the category of private tenancy or tenancy conducted as part of an organised business activity can sometimes be difficult, certain basic guidelines in this regard can be outlined. We will be dealing with private tenancy when a given property is in the private assets of an individual, the renting itself does not have the character of an organised business activity within the meaning of the Personal Income Tax Act, and the proceeds from it have the character of a "separate source of revenue". On the other hand, we will be dealing with tenancy as part of business activity when the entrepreneur's subject of operation is professional tenancy, or when the rented property simply belongs to the company's assets or has been included among fixed assets used for conducting business activity.
However, these criteria remain unclear. The examples described above constitute a significant simplification. It is solely intended to outline the general system of how private tenancy differs from that conducted as part of business activity. In practice, there are many borderline situations in which it is difficult to unambiguously determine the character of a given tenancy relationship. In extreme situations, when the taxpayer is unable to assess the above issue on their own or with our help, it may be required to apply for an appropriate individual interpretation from the tax authorities.
Resolving the above issue is of key importance. The appropriate classification of a given relationship determines the way in which the landlord will settle the tax on the lease of commercial premises.
Example 1
Mrs. Barbara bought a commercial premises on the ground floor of a newly built residential building.
She runs a pharmacy on a daily basis and the funds collected allowed her to do this
such an investment. Does not run a business activity focused on the real estate market,
and the commercial premises were acquired as part of her own assets. If a lease agreement is concluded, this relationship will be
it was a private lease.
Example 2:
Mr. Artur runs a real estate company. A new one was built in his city
a shopping mall in which Mr. Artur, acting under his company, purchased several commercial premises
intended for shops. In the event of conclusion of lease agreements, this relationship will be in the nature of
business.
Of no little importance in this regard is also the purpose and functions that the tenancy fulfils in the intention of the landlord. Once again, it should be emphasised that the assessment of this issue invariably causes many problems. This also stems from the fact that different definitions operate in individual statutes, which translates into their varied interpretation by tax office employees.
As a rule, however, it appears that the interpretation of regulations in this regard tends rather towards a broader recognition of private tenancy. Helpful in this regard is the Resolution of the Supreme Administrative Court, reference number II FPS 1/21, from May of last year. Its operative part reads:
Revenues from rental, sublease, lease, sublease and other contracts of a similar nature are included without limitation in the source of revenue listed in Art. 10 section 1 point 6 of the Act of July 26, 1991 on personal income tax, unless they constitute an asset of the property of a natural person which was introduced by him into the property related to the performance of business activities.
As follows from the above and the content of the resolution, the determining factor for the recognition of private or business lease is whether the property is in the private property of the lessor or in the property related to the business activity. This resolution should dispel certain doubts and consolidate the jurisprudence in this area. At the same time, it seems that there will still be situations when the Tax Offices will have doubts due to the scale and nature of the lease. Even if, according to the resolution, it should be treated as a private lease
Example:
Mr. Adam used his own property to buy four commercial premises in a local pavilion. He finished them off
and then everyone rented it. The income he obtains in this way is not his only source
maintenance. He works in another industry and at the same time administers, supervises and maintains the mentioned ones
premises, deriving profits from their rental.
In this case, Adam’s activities are of a quasi-professional nature. He has made the letting of premises his day-to-day occupation and an additional source of income. His activities meet the criteria for ‘economic activity’ within the meaning of the provisions of the Act of 6 March 2018 – Entrepreneurs’ Law, as this is an organised profit-making activity, carried out in his own name and on a continuous basis. At the same time, the premises form part of his personal assets; he does not operate a formal, registered business and does not include these premises in the assets associated with the conduct of such a business. From the perspective of the resolution in question, it must be concluded that Adam – in accordance with his own wishes – is engaged in private letting. At the same time, despite this, his activities could be regarded as a business activity, which would lead to the rental carried out within that framework being classified as taxable as a rental linked to a business activity.
In our view, the key criterion distinguishing private letting from a business activity is the degree to which it is organised – the primary determinant of which is the number of tasks carried out on a regular basis (e.g. once a month) by the landlord. It is, after all, easy to distinguish whether the activities carried out in connection with the administration and performance of concluded tenancy agreements take up 1–2–4 hours per month, or whether they are carried out on a regular basis, for example 40 hours per month, and require the landlord to give up their job or employ an additional person for this purpose.
Consequently, situations may arise where the courts will indeed follow the guidelines set out in the aforementioned resolution, whilst tax officials will stick to their own position. In such cases, some would assess the situation of the person in the example above as a private let, whilst others might regard it as a let carried out as part of a business activity, which would entail an obligation to register the business and pay the relevant contributions – as well as a slightly different tax regime for the let. For this reason, in borderline cases, it is often necessary to seek the support of an experienced representative – a legal adviser or tax adviser.
In light of changing regulations, however, certain benefits associated with private letting are gradually being phased out.
Settlements under private lease
So far, it was possible to settle this issue in two ways:
- Tax scale 12% and 32%;
- Lump sum 8.5% and 12.5%.
Following the introduction of the Polish Deal, the regulations in this area have undergone certain changes, both in relation to tax returns for 2022 and for 2023. Furthermore, following subsequent amendments, the first tax rate for taxpayers filing their returns using the tax scale has been changed from 17% to 12%. Those who had previously filed their tax returns using the tax scale were also able to do so in 2022.
From 2023, taxation of private rental will be based solely on a lump sum tax..
Rules for settling private leases according to a lump sum:
Everyone will have to settle the tax on the lease of commercial premises on this basis from 2023. This means that regardless of the possibilities that some taxpayers have - to settle the tax in 2022 under general rules, these rules should be taken into account. There are two thresholds in this regard:
- 8.5% – first tax threshold up to PLN 100,000.00;
- 12.5% – for the amount exceeding PLN 100,000.00 of revenue.
Please remember that in this case we are dealing with revenue as the basis for settlement, and not income as above. For this reason, it is not possible to deduct costs related to obtaining income. The expenditure made by the landlord therefore remains irrelevant. Refunds for bills remain controversial, but there are interpretations stating that if they are separated, then yes, payment of current fees can be made through the landlord's bank account. Of course, after meeting certain conditions.
Settlements within the framework of business activities
In the case of settling the lease as part of a business activity, there are three options:
- Tax scale 12% and 32% on income;
- Flat tax 19% on income;
- Lump sum of 8.5% and 12.5% on income.
A novelty introduced by the Polish Order is the obligation to pay health insurance contributions together with these taxes, which amount to:
- 9% for tax scale;
- 4.9% in the case of flat tax;
- A lump sum amount depending on the amount of income.
Income tax is not everything...
Apart from the fundamental issue of income tax, reference should also be made to VAT. This is also a tax on the rental of commercial premises that must be paid. What is important -
in the case of service premises, it must be paid both in the case of private lease and that run as part of a business activity.
A VAT payer within the meaning of Art. 15 of the VAT Act may be both an entrepreneur/company conducting an organized business activity, paying rental tax as part of a business activity, but also a natural person who conducts a business activity within the meaning of Art. 15 section 2 of the VAT Act and is settled on a private lease basis. Such activities include all activities of producers, traders or service providers, including entities extracting natural resources and farmers, as well as the activities of freelancers. Economic activity includes in particular activities involving the use of goods or intangible assets on a continuous basis for profit-making purposes. In short - regardless of whether we agree with it or not, every lease of commercial premises is based on: VAT Act as a business activity.
Not everyone will pay…
Consequently, anyone who derives income from the letting of commercial premises will be liable to pay this tax. However, it is important to bear in mind Article 113(1) of the VAT Act, according to which taxpayers whose total taxable turnover did not exceed PLN 200,000.00 in the previous tax year are exempt from this tax. Furthermore, the amount of tax is not included in this figure.
This means that if a natural person does not earn more than PLN 200,000.00 net per year from letting, then, as a general rule, they are not obliged to pay VAT.
The VAT rate for the letting of commercial premises is 23%. These services are not exempt from VAT, which can sometimes be misleading. After all, it is widely known that services relating to the letting or leasing of residential property or parts of such property, on one’s own account and exclusively for residential purposes, are exempt from VAT. However, this provision does not cover the letting of commercial premises, and this must be borne in mind in each case!
As this article focuses on tax changes relating to the letting of commercial premises, whilst the VAT rules in this area remain unchanged, the considerations set out above are merely marginal and intended to highlight the issue. They are certainly not exhaustive!
The most important changes
Regarding the introduced changes, the thing that may have the greatest impact on the way landlords operate and the scale of their profits seems to be the restriction of the possibility of settling accounts under the tax scale for private rentals. This option was particularly attractive to those who incurred costs related to generating a profit. We are talking here, for example, about renovations, mortgage instalments, depreciation, etc. In such cases, although the percentage tax rate under these rules was higher, at the same time it was deducted from a lower amount. With the changes, however, the option to settle on a lump-sum basis from the amount of revenue for private rentals will remain. The introduced regulations, on the other hand, make an economic approach to tax settlement more difficult and somewhat narrow the scope for financial manoeuvre. This shows how important the advice of a professional representative is.
At the same time, one cannot forget about the amended PIT rate and the payment of appropriate health insurance contributions in the case of settlements within the framework of business activity.
Tax regulations have a tendency to rarely be clear and transparent. This article, although partially clarifying what the tax on the rental of commercial premises looks like, also shows what a challenge it will be for landlords to settle accounts properly, in accordance with the regulations and with the least pain for the wallet. Choosing the most convenient method of payment remains quite a challenge. Removing the possibility of settling accounts on the basis of the tax scale for private rentals from the regulations further narrows the range of possibilities.
We offer assistance to interested landlords in preparing a lease agreement and, in the package, also in choosing a tax settlement method.
It is important to reliably assess whether we are dealing with private rental or rental as part of business activity, and then to choose the method of taxation under which the given rental should be accounted for. There is no universal advice here – each case must be carefully and individually assessed, weighing up the possibilities and needs of the taxpayer. This taxpayer is, of course, the property lessor.
Our activities encompass the broadly defined
legal services for companies and business activities and individual clients. Above all, though
We specialize comprehensively in all matters related to real estate rental. Please contact us, we will be happy to prepare a safe lease agreement for you - which will not only be safe from the tax point of view, but will also clearly divide the obligations of each party and thus help you avoid many unforeseen costs and conflicts. If the other party has already prepared the contract, we will help you make corrections to the project or contract template sent to you by the other party.
In matters relating to preparation real estate lease agreements and in matters relating to the taxation of income from lease agreements, we encourage you to contact directly with ours Law Firm.
