Poland

Legal and tax aspects of
investing in real estate
The choice of the legal form for the SPV
will determine the structure under which
such an entity will be operating. The foreign
investor may either be a direct shareholder
in the SPV, remain a parent company for
a foreign/Polish company controlling the
SPV, or arrange any other structure that
would suit its needs from the legal and tax
perspective.
There are two ways for an investor to
introduce the SPV into its capital structure:
the SPV may be bought or established by
the foreign investor. There are numerous
service firms offering the sale of established
companies or partnerships (so-called
“shelf companies”), that can be used
straight away. However, this is always more
expensive than setting up a new entity.
Apart from the legal forms mentioned
above, a foreign investor may also operate
in Poland and invest in real property:
• directly through its branch;
• by entering into a joint-venture.
For more complex and diversified
investments a formula of a closed-end fund
(Fundusz Inwestycyjny Zamknięty; FIZ) can
be used.
2.2.2. Limited liability company
A limited liability company (spółka
z ograniczoną odpowiedzialnością) is
commonly used as the SPV for real estate
investments or development projects.
The features of the limited liability company
are set out in the Commercial Companies
Code, the most important of them being:
• it may be created by one or more
persons for any purpose allowed by law
(it may not be formed solely by another
single-shareholder limited liability
company);
• liability of the shareholders is limited to
their contribution to the share capital of
the company;
• the share capital of the company shall
amount to the minimum of PLN 5,000
(ca. EUR 1,200) and is divided into
shares of equal or non-equal nominal
value;
• the share capital can be covered by a
contribution in-kind;
• limited liability company is a legal
person and as such, it is a party to
specific rights and obligations;
• it acts through its body, i.e. the
management board; the members of
the management board, in general, are
not liable for the company’s liabilities.
The Commercial Companies Code provides
for an institution of a “company in
organization”. This means, that a limited
liability company set up by signing the
articles of association may acquire rights
on its own behalf, including the right of
ownership of real estate and other rights,
incur obligations, sue and be sued even
before its registration with the registry
court.
It is also possible to register a limited
liability company with the registry court via
the Internet. The procedure is simplified in
comparison to the standard procedure and
requires the registration of the company
through a dedicated website of the Ministry
of Justice (https://ems.ms.gov.pl/).
Poland. The real state of real estate | 65