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Which Set of Laws to Use in Real Estate Transactions?

May 23, 2011 Leave a comment

Skärva - The country estate

Some international real estate, yesterday

This morning on social media I added the following to a discussion on the above question. Some others had given similar answers, but there were other divergent answers.

The most important jurisdiction is where the property in question is physically located. This determines whether the mortgages or charges which the lender will wish to place on the property are properly drawn up and registered.

Let’s imagine a scenario where an inhabitant of country A buys a building in country B and receives a loan to do so from country C. If Country B has law that says a resident of country A needs a permit to buy property from country B, and the person from A has bought without the permit, then in that scenario any rights that the buyer has granted the lender will automatically also not be enfoceable on the property.

Which doesn’t mean that I can’t use Country C law for the loan contract – probably you can, but in a way that also takes account of the risks and vagaries of the law in country B and also maybe even Country A.

For these things you need firms of real estate lawyers and tax accountants that are international. Not just networks, but firms where the people putting the deal together include experts from the different countries involved working in each other’s offices or working together so closely and regularly, that they may as well be in each others’ offices. Good professional international communication is the key to success in these cases, and not every firm seems able to deliver it.

Tax is also a consideration, but most of all you have to make sure that you are compliant with the laws of the place the property is. The worst things that can go wrong will go wrong if that isn’t sorted out first and foremost.

Related articles

Wide-ranging changes to all major Polish taxes in 2011 – from TGC Poland

January 5, 2011 1 comment

The following important update has been provided courtesy of our friends at TGC

Dear Quoracy.com readers,

The new year has brought a number of changes pertaining to VAT, CIT and PIT. Please find below the major changes effective as of 1 January 2011.

VAT

Several amendments to the VAT Act entered into force on 1 January 2011, thus jointly constituting the greatest change of this tax since 2004.

  1. From 1 January 2011 the basic tax rate amounts to 23% and the reduced rates amount to 8% and 5%, respectively. The long-term plan provides for further increases in the VAT rates, if the level of public debt of Poland exceeds the so-called prudential threshold of 55%. Due to the change of the VAT rates, several interim provisions have been introduced that regulate the rules of transition to the new rates and the ultimate return to the VAT rates applicable at the end of 2010.
  2. Pursuant to the adopted amendment, the Polish Classification of Products and Services (Polska Klasyfikacja Wyrobów i Usług – PKWiU) of 1997 will no longer be used for VAT purposes, being replaced with the PKWiU of 2008. Due to the significant differences between the two classifications, in order to determine the correct VAT rate for a given product or service, it is necessary to verify the practices applied so far.
  3. The appendix number 4 to the Act – including the list of exemptions – has been deleted and the said list has been included directly in Article 43 of the VAT Act. It should be pointed out that the scope of many exemptions has been modified, thus it is necessary to verify the practices applied so far.
  4. New rules have been introduced with regard to the settlement of gratuitous delivery of goods and gratuitous provision of services.
  5. The changes in the VAT Act have introduced new regulations with respect to the manner of specification of the right to deduct VAT charges in relation to the purchase of a real property used within the scope of the conducted business activity and for private purposes.
  6. The changes in the regulations provide that from 1 January 2011 until the end of 2012 purchasers and lessees of passenger cars equipped with a cargo partition, who until the end of 2010 had the right to a full deduction of tax, will be permitted to deduct only 60% of the VAT amount, and not more than 6,000 zlotys. Moreover, deduction of tax on purchased fuel for such cars will no longer be possible. This applies also to vehicles purchased on previous, more favourable terms.

CIT

  1. The long-announced exemptions for foreign investment and pension funds (from the EU and EEA member states) have been introduced.
  2. Pursuant to the amendments to Article 20 clause 3 point 4 and Article 22 clause 4 point 4 of the CIT Act, it was specified that the exemption under the said provisions is possible only on the condition that the company earning income (revenues) from dividends and other revenues on account of participation in profits of legal entities is not exempt from income tax, irrespective of the source of the latter.
  3. New rules have been introduced with regard to determining the initial value of assets constituting a contribution in kind to a company in the form of an enterprise or its organised part.
  4. Income from the sale of shares or stocks to a company for the purpose of their redemption is no longer classified as income from participation in profits of legal entities.
  5. The amended provisions of the CIT Act have introduced new rules of taxation with respect to the settlement after liquidation and withdrawal from the partnership.

PIT

  1. New provisions have been introduced with regard to the taxation of income earned by natural persons on account of participation in partnerships,
  2. Rules of filing joint tax returns by married couples have been modified (by way of an automatic extension of the possibility of filing joint tax returns at the request of one of the spouses only in the subsequent fiscal years, upon fulfillment of specific conditions),
  3. The term “single parent” used for purposes of joint tax settlement with a child has been narrowed down in order to specify the group of persons entitled to such settlement,
  4. A possibility has been introduced to apply a tax exemption in respect of the purchase of shares of companies within the scope of incentive programs, irrespective of the manner of purchase of such shares, which will also apply to companies whose registered seats are located in other EU and EEA member states.
  5. Several changes have been introduced to the rules of documenting tax reliefs and exemptions, including, inter alia, the Internet relief and rehabilitation reliefs, extension of the exemption pertaining to benefits on account of employees’ accommodation to a certain limit (applicable to all forms of such accommodation).

The changes indicated above constitute only a part of the changes in taxes that will affect your business activity in 2011. Should you need a detailed interpretation of specific examples related to the aforementioned issues, please contact our experts:

Marcin Eckert
Tel. +4822 6533804
E-mail: meckert@tgc.eu

Sebastian Stec
Tel +4822 6533629
E-mail: sstec@tgc.eu

TGC Corporate Lawyers
ul. Królewska 27
00-060 Warsaw, Poland

Tel: +48 22 653 3644
Fax: +48 22 827 6915

Website:  http://www.tgc.eu

Poland – New Anti-Smoking Law At Long Last!

November 9, 2010 1 comment

On 15 November 2010 an amendment to the Law on Health Protection against the Consequences of Tobacco Products comes into force. The amendment introduces a total ban on smoking, i.e. in hospitals and health clinics, schools and colleges, cultural and recreation sites, pubs and restaurants, sports facilities, public transport and workplaces. Owners or property managers (e.g. hotels, schools, workplaces) may designate smoking rooms on their territory, which means separate facilities that meet certain standards of construction and air ventilation.

Implications for employers

To date smoking in the workplace was also prohibited, but employers with at least 20 staff were obliged to establish a smoking room, regardless of the number of smoking employees. Specific standards in terms of space and ventilation of smoking rooms are governed by general health and safety (BHP) regulations.

After 15 November 2010 the decision on establishment of a smoking room will belong to the owner or administrator of the building. The existing smoking rooms may continue to operate if they meet the standards required by BHP regulations. In addition, the owner or property manager is obliged to put up in visible places clear information about the ban on smoking tobacco in the building. Employees smoking outside designated sites may be punished by a disciplinary penalty, and the employer may be given a mandate.

While considering the establishment of a smoking room in the office, the employer should take into account many aspects. Creation of a smoking room generates costs, but lacking a smoking room will not result in smokers resigning their habit or improving work efficiency. The need to go outside the office premises to smoke results in a loss of working time, and the sight of groups of smokers and cigarette-ends outside the office entrance does not improve company image. Certainly, more effective would be the prevention of psychosocial hazards and the promotion of healthy behaviour by the employer.

Traditional vs. electronic cigarette

For several years e-cigarettes have been available on the market, which are electronic devices that provide inhaled doses of nicotine. The electronic cigarette is a small device – resembling a traditional cigarette – which is electric or battery powered. The “smoke” from an e-cigarette is almost odourless and much less burdensome for non-smokers.

The e-cigarette is a new product and therefore its legal status is varied. In some countries its sale is forbidden, and in some completely legal or permitted under certain conditions. Poland has not yet developed any regulations on the sale and use of e-cigarettes. Recent legal changes have not covered this issue as well, although the Ministry of Health is considering a prohibition of the sale of e-cigarettes in the near future.

The National Labour Inspectorate (PIP) receives more and more inquiries from employers and employees regarding the terms of use of e-cigarettes in the workplace. In particular, non-smoking employees are worried whether smoking e-cigarettes in the office does not cause similar effects to passive smoking. Because there is no conclusive research yet on the effects of e-cigarettes for their users and the environment, it seems possible that within their obligation to ensure all employees safe and healthy working conditions the employers introduce a ban on smoking e-cigarettes in the workplace (similar to traditional tobacco products).

To find out more

If you need a detailed interpretation of the new regulations or consultation on creating healthy work environment, please contact the  experts at TGC who are briefing businesses and individuals on this area:

Agnieszka Janowska
Director of the Labour Law Department
Tel.: +48 22 653 3862
Email: ajanowska@tgc.eu

Dorota Strzelec
Consultant/ Occupational Psychologist
HR Management Department
T:  +48 22 653 3866
E: dstrzelec@tgc.eu

TGC Corporate Lawyers
ul. Królewska 27
00-060 Warsaw, Poland
T: +48 22 653 3644
F: +48 22 827 6915
E: tgc@tgc.eu
W: http://www.tgc.eu

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