If you haven’t appointed an auditor yet in Poland and you needed to by law, here’s what can happen…


Rzeczpospolita (newspaper)
A leading business daily in Polish

An excerpt on appointment of auditors from one of the leading Polish newspapers Rzeczpospolita.

There are a few articles here on one large page, one of them dealing with what an audit report is and what it’s supposed to contain. This is anodyne and will be what you would expect from your own country, if it is in line with IFAC standards.

Another article talks about what the audit thresholds are. I’m going to write a separate article on audit thresholds comparing different countries in our region, but Poland has the fairly sensible levels of any SA, and for an Sp. z o.o. it’s 2/3 of the following: 1) Turnover 5 million Euros in the preceding year, 2) gross assets of 2.5 million Euros in the preceding year and 3) 50 employees on average in the year. The article offers a PLN interpretation of these levels for this calendar year end. I do not really want to reproduce that as not every company has calendar year and it is also not hard to work it out whether your Company in Poland has mandatory audit or not, and if you’re not sure, ask me and I’ll tell you for free.

The most interesting article in this audit related supplement, though, is probably the one which states that in line with article 64 paragraph 1 part 4 of the Act on Accounting,  if the management needs to appoint an auditor it should be in time so that he/she can observe any material inventory counts.

So what that means in practice is that you’re probably OK if you have no stock or fixed assets. If on the other hand you do have these and they were due for a count, the auditor is risking big trouble if they come in and give an opinion on the figures not having attended the count. If this is of interest in your case, please look up the much larger on that subject below.

In the worst case there will be Companies who did their stock-counts without the observance of an auditor and they later discover they need to appoint one. Three alternative things can then happen. The first is that you chance on an ethical but unhelpful auditor, who refuses to take on an audit if the stocktake is already done. If you only meet such auditors, then you won’t be able to get the audit done and you’ll be in breach of the Act if you were over the size criterion or are a joint-stock company.

The second option is where the auditor says I can do this, but later pulls a qualification on you because of not having been able to attend the counts. You then have to file an audit report which isn’t 100% clean, and then live with the fact that you may not be able to declare a dividend and that the tax office will come breathing down you necks wondering what is going in. I don’t think it’s ethical for an auditor to lead the client into taking them by not being clear that they intend from the moment they are hired to give a modified audit report, but some people seriously justify it to themselves that it’s the client’s fault for not coming early enough.

Then there is the option where the auditor is both helpful and ethical, in that they take part in other procedures designed to make good the absence of an actual attendance at the time of the stocktake. Some auditors can use their business understanding and imagination to gain the assurance they need professionally without needing to do the whole stocktake over again. You may need to shop around to find these ones. I can certainly help you find people who approach their work in that more constructive period though.

In the very worst case, you may need to do the stock take again, but beware, you cannot do that officially after one month from year end anyway, and it involves extra work on the reconciliation afterwards, which will be on the shoulders of your chief accountant.

If you’re late appointing, don’t delay it any more – that’s the moral of the story!

So you want to start a business in the Czech Republic? What do you set up, a Company or a Branch?


The main considerations are grouped under headings

LEGAL

• The scope of business of the branch may not be broader than the scope of business of the foreign entity.

• The branch must publish the financial statements of the foreign company in the registry of documents kept by the Commercial Register, which effectively means getting the whole report of the company the branch is part of and translating it into Czech, and publicising it even if the accounts were not liable to be made public in the jurisdiction of the Company.

ACCOUNTING

• In general the same statutory obligations apply for both branch and legal entity from accounting and financial reporting point of view, i.e. every corporate entity doing business in Czech Republic must keep the books in Czech language and must file the financial statements to the Commercial Register.

• The only difference we can see is that the statutory financial statements of branch are to be incorporated into the statutory accounts of the founder whereas in case of legal entity financial statements stands alone and the financial asset (i.e. investment in the subsidiary) is to be shown in the accounts of the parent company.  Branches do not really have separate equity, as they are not legal persons, but in order for the balance sheet to balance the capital employed needs to be shown as if they were, on a pro-forma basis. Likewise purchases of goods by the branch from the company it is part of is legal nonsense, as there is no tranfer of ownership to a branch, but still in order to give a picture of the performance of the branch as well as to be above board with regard to international transfer pricing, again branch accounts should be done with these intra-company “sales” and “purchases” included as pro forma. Remember that the branch has its own tax life in the country where it is.

AUDIT

• The same statutory obligations apply for both branch and legal entity to have its accounts audited.

• The general rules are as follows:

1) joint stock companies One of the following criterions is met for two consecutive accounting periods: a) gross assets of 40.000K CZK b) revenues of 80.000K CZK c) average number of employees over 50.

2) other legal entities (limited liability companies, branches, etc.) Two of three above criterions are met for two consecutive accounting periods.

 TAX

• From the Czech corporate taxation point of view the branch must register for corporate income tax only if having taxable income in the Czech Republic through a permanent establishment, the legal entity must register in any case.

• In case of the branch the income and costs need to be allocated to branch activities, however keeping in mind transfer pricing and substance-over-form principle that are applicable under both structures, i.e. under both branch and legal entity constructs.

• Profits/losses will be included in profits of the founder of the branch taking into consideration double taxation reliefs.

• From the VAT perspective in case of the branch the VAT payer is actually the headquarter that has Czech VAT registration while in case of the legal entity it is actually the entity itself being Czech VAT payer.

• Profit repatriation in the case of the legal entity must be taken into account, however, if the parent company being an EU entity with more than 10% shareholding for more than 12 months dividend payments are tax exempt.

  Subsidiary Branch
Tax registration obligatory Only if taxable income from sources in the Czech Republic
Tax at operational level 19% CIT 19% CIT
Tax at parent/headquarter level in respect of subsidiary’/branch’s profits Participation exemption or tax credit (in cases of dividend distribution) Tax rate of the headquarter (note: double taxation relief ® participation exemption or tax credit)
Withholding tax (dividend, interest, royalties) Often (note: EC Directives and tax treaties) Rarely
Loss settlement with foreign parent company/headquarter In principle no Yes (unless exempt under headquarters’ domestic tax law)
Liability debt (claims) at operational level Local operating company (=subsidiary) Headquarter

The above was based on the amiable co-operation of TGC Corporate Lawyers and Baker Tilly sro in Prague and Brno.

Poland – New Anti-Smoking Law At Long Last!


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

Sample HR Newsletter (June 2010 edition) from Contract Administration Czech Republic


If you have HR matters to look after in the Czech Republic, you probably know how tricky it can be. Here is a sample of Contract Administration Czech Republic’s excellent HR newsletter, which is a very readable and relevant update of the ever-changing world of Czech labour law and payroll tax and insurance issues.

Contract Administration Czech Republic’s June HR Newsletter

This is set fair to become one of the most popular pdf-casts in the Czech business universe. To get a regular copy, contact Contract Administration via their website .

Their highly reputed personnel administration service is available from their offices in Prague, Bratislava, Warsaw and Wroclaw.

Solicitors’ Accounts Rules for UK solicitors overseas


If you are a UK qualified solicitor practising overseas, you probably know that it is an obligation for you under rule 15.27(4) of the Solicitors’ Regulation Authority to have a reporting accountant’s examination on your clients’ monies accounts. This should be done by a qualified auditor who will send back to the Solicitors’ Regulation Authority in the UK an accountant’s report.

If you are not sure whether you are subject to Rule 15, you should seek guidance for your case from the SRA. Their website is http://www.sra.org.uk .

This return needs to be done every year, but the scope is not as onerous as for lawyers who are practising in the UK itself, who are not under Rule 15, and its various easements.  Nevertheless, it can cause you some inconvenience if you’re in such places as Eastern Europe dealing with local auditors who are not au fait with the regulations of the SRA, whose English is not up to dealing with the legal nuances they contain, and who will therefore not be able to do a very economical job for you.

If sorting out this requirement has been a problem for you in the past, then you’ve come to the right place. Please get in contact with me at djames@bakertillypoland.eu in order to sort the problem out for a very reasonable fee.  You won’t be charged for me reading the SRA’s rules – I’ve already read them. I’ve already got my work programme, I already know the report template, I already have the lists of what to ask you for, so not only will it be cheaper, it’ll also be quicker.  So if you want a client monies’ account audit for a UK solicitor in East Europe who needs to file an accountant’s report under the provisions of Rule 15.27(4) of the SRA’s code of conduct, you know where to come.

Tell your learned friends!

Never make non-returnable down payments when buying a business.


I would like to tell you a cautionary tale, in which I may definitely not identify the parties involved and all I will say is it took place some years ago, somewhere in Eastern Europe.

A certain foreign investor, prior to coming to me for advice, had already down-paid a million on non-refundable deposit (so-called “vadium”) to the seller in order to be allowed to proceed with Due Diligence on an SPV containing a building he considered (although I disagreed with that too) to be worth a lot more. Let’s say five million. I’m hiding the actual transaction details in order not to embarass anyone, so five million is in fact correct, but the currency I’m using is fictional.

Well, needless to say, as ever I discovered plenty of question marks in the SPV, in fact SPV was not the correct word for this company at all. “SPV” means “Special Purpose Vehicle” and in real estate that basically means it’s there to own a building so as to allow some flexibility on the way of sale of a building and the choice with depend on the seller and buyer’s tax positions whether the building is sold out of this then empty company as an asset or whether it is sold in it’s corporate coating. There isn’t supposed to be anything else going on in an SPV. Well, there was in this one. Some proper monkey business, as we say in the trade. Although, in fairness, zoological supplies was about the only thing they hadn’t done. Among other things this company was holding shares in other entities which had been written off to a nominal value of one Euro in the balance sheet, but which under local law entailed liability for the owner and therefore had negative worth (of about five million Euro in total therefore nullifying the value of the Entity even if the building had been worth what the seller claimed and the buyer believed) It’s not easy by the way to spot such things using traditional audit methods. There’s a tendency to see no figure in the investments line on the balance sheet and then not even ask the question – but you have to ask it. Continue reading “Never make non-returnable down payments when buying a business.”

Where’s the value in an Enterprise?


Metropolitan Life Bldg., Manhattan, New York C...
Metropolitan Life Building, New York City, c 1911 (PD from Wikimedia)

I was recently asked whether there was any value in a loss-making business that had had a good reputation for 30 years.

Put very simply, and almost as a philosophical maxim, the sum of the value of an enterprise is equal to the sum of the NPVs of its projects (including as one project the liquidating of its assets, if that’s what it has to do). If it has no projects, it has no value. If it has only or overwhelmingly negative NPV projects, then it has negative value. Even the case of Woolworths shows you that a name that we all grew up with cannot prop up negative NPV projects for long. Therefore the way to assess value is to make a business plan for all the projects based on assumptions analysed down to the smallest level logically appropriate, with values ascribed to those assumptions which are objective and as researched as possible, and then to run PV calculations on the business plan.

Sure, someone will come along and say “Hey, that’s too complex. What something is worth is what someone else would be willing to pay for it. This I know, for the IFRS tells me so” – but in the final analysis what that other person is willing to pay will only be based on what he thinks he can make from it in the terms stated above, less his margin for risk of buying it. No business person actually buys at the value in use, they want to make a profit on buying it at less than that, but their perception of the ultimate value should be based on the sum of the NPVs of the projects. Continue reading “Where’s the value in an Enterprise?”