The subject of the tax succession and the merger of companies – gloss to the supreme Administrative Court Judgement of 8 September 2016, II FSK 2210/14

Abstract

The commented judgement refers to the scope of tax succession in case of merger of companies. In Authors’ opinion, the legal nature of individual tax ruling does not exlude the succesion of rights arising from the ruling. However, it is necessary to distinguish between right and exemption from obligation. The standpoint presented by the Supreme Administrative Court that the successor may acquire all the rights and obligations of the merging companies determined in the provisions of tax law – even if the right did not exist at the time of merger – cannot be approved. Under the Polish tax law the successor acquires only the rights and obligations that his precedessor had. The analysis of individual tax rulings in tax succesion perspective leads to the conclusion that a legal person established as a result of merger has the right to comply with the tax ruling and the expectation of exemption from obligation in case of tax ruling’s amendment or expiration.