MDR in reorganisations after the reform — five scenarios, EBIT and deadlines

No MDR reporting obligation does not mean a reorganisation is tax neutral. From 1 October 2026 the new rules cover cross-border arrangements; earlier matters need a separate transitional analysis. This guide examines five scenarios, the EBIT threshold, team responsibilities and actual deadlines. Legal position: 13 October 2026. See also MDR after the reform for the general system.

The timeline starts before registration in the KRS

Do not select the legal regime solely by the merger or division date in the commercial register. An arrangement includes planned and connected actions, stages and a series of arrangements (Article 86a § 2(19) of the Polish Tax Ordinance). Making it available may involve a presentation, message or conversation explaining its assumptions, mechanism, stages or method of obtaining a benefit (point 18). A general preliminary discussion does not necessarily make a specific reportable arrangement available.

For a promoter's activities under Article 86b § 1(1), the 30-day period follows the earliest statutory event: the day after making the arrangement available or ready for implementation, or the day of the first implementation action. For supporting activities, point 2 refers to the day after assistance, support or advice is provided. Assess the beneficiary's obligation and its trigger separately under Article 86c.

Record the dates, events, participants, information type, filing status and transitional basis. A later opinion does not replace an earlier availability date. Reassess classification and any supplementary reporting when facts or the project's scope change.

Earlier matters: reconstruct the exemptions too

Former Article 86a § 1(10) provided three routes: a generic hallmark together with the main benefit test, a specific hallmark, or an other specific hallmark. Cross-border arrangements had their own scope under point 12 and § 3: generic hallmarks (a)–(h) with the test, or a specific hallmark. Not every arrangement under the former law was cross-border.

Arrangements other than cross-border ones required consideration of the qualified-beneficiary criterion. Former § 4 covered revenue, costs or assets exceeding EUR 10 million in the previous or current year; a market value of assets or rights covered by the arrangement exceeding EUR 2.5 million; or the specified relationship with such an entity. Currency conversion followed § 8. One small company did not necessarily end the enquiry.

Include former § 5 exclusions for a beneficiary who did not qualify and the specified cooperative-compliance agreement situation, and § 5a for non-cross-border CIT arrangements during taxation under the Polish lump-sum corporate income tax regime, commonly called Estonian CIT. Crossing a threshold did not itself establish a hallmark. After identifying a former obligation, apply the transitional rules rather than automatically filing every former form.

The new test: scope, cross-border element, hallmark and role

New Article 86a § 1 excludes VAT and excise duty from the MDR chapter. Under § 2(13), the arrangement must concern at least two EU states, or an EU state and a third country, satisfy a condition in (a)–(e), and have a generic or specific hallmark. Examine participants, foreign permanent establishments and the entire sequence, not merely the contractual parties' addresses.

Generic hallmarks in point 8 require the main benefit test in point 5; specific hallmarks in point 15 do not. A real business purpose and no substantial tax saving therefore do not automatically remove reporting for a transfer of functions or hard-to-value intangibles. There is no general company-size threshold replacing the individual hallmark tests.

Where an employee performs promoter activities as employment duties, the employer is the promoter (Article 86a § 6). Do not carry over old employee rulings without qualification. A beneficiary who is also promoter of a non-standardised arrangement acts only as beneficiary (§ 7). For an external team, examine both limbs of the promoter definition, the knowledge condition applicable to supporting activities, and the required EU connection.

With several advisers or companies, organise the evidence flow. Article 86e § 1 can relieve other promoters on evidence of a report, but § 1a–1b can require an omitted promoter or omitted information to be added within 30 days of the relevant event. The beneficiary still assesses its own MDR-3. Receiving another adviser's number does not finish the work.

Transitional rules and worked deadlines

Article 24 of the amendment concerns a deadline expiring on 30 October 2026. It preserves the former rules for performing the specified former MDR-1 duties. It does not refer to every deadline expiring by that date. For another deadline, assess the origin of the obligation, the changed provisions and the intertemporal rules separately.

Article 25 applies the new MDR-3 deadline to information submitted from commencement; Article 26 excludes use reports for non-cross-border arrangements reported before that date on the specified basis. Article 27 concerns new disclosures of a previously available standardised arrangement; Article 23 concerns a former supporting entity that meets the new promoter definition. These provisions answer different questions.

The first two examples assume that making the arrangement available was the earliest trigger and that reporting is required under the applicable regime. The quarterly example concerns a promoter covered by Article 86f § 4; the annual one a beneficiary covered by Article 86j with no transitional exclusion. Future dates use the law known at the update date.

Availability on 29 September gives an analogous deadline of 29 October. Being outside Article 24's literal wording is not, by itself, proof that the obligation has expired. This needs individual intertemporal analysis, not mass closure of the register.

MDR-3 is filed separately for each arrangement. Its deadline follows the PIT or CIT tax year, the tax capital group's year in the specified case, or the calendar year for a beneficiary that is neither a PIT nor a CIT taxpayer. Carrying out arrangement activities can suffice even without a benefit. Do not equate this deadline with CIT-8 or assume one combined report for all arrangements.

Five reorganisations and an EBIT example

The domestic scenarios assume a new post-reform arrangement whose entire scope genuinely remains in Poland. They do not assess an earlier project or just one stage of an international plan. The conclusions concern MDR, not the CIT, PIT, VAT or civil-law transactions tax (PCC) outcome.

Hypothetical example: a Polish company transfers functions and assets to an associated German company. Assume the MDR cross-border and association requirements are met. A reliable annual EBIT forecast for the transferor is:

In each of the three years, post-transfer annual EBIT is below 50% of the no-transfer forecast. On these assumptions this indicates the specific hallmark in Article 86a § 2(15)(j), regardless of the absence of a main tax benefit. Compare the transferor or transferors, not an arbitrarily chosen whole group. This simple example does not settle every forecast methodology, including loss forecasts.

The boundary matters: PLN 5 million against PLN 10 million is exactly 50%, not less. If the analogous result is exactly half in all three years, this condition in (j) is not met; other hallmarks still need assessment. Do not round boundary values before testing them. The displayed percentages are for presentation.

Retain both forecasts, assumptions, periods, data sources and the description of transferred functions. Assess tax neutrality, transfer pricing and GAAR separately. An MDR report does not confer a tax preference; the absence of a report does not prove that a preference is lost.

Liability after the law changes

Article 80f § 1–3 of the Fiscal Penal Code (KKS) covers the specified failures or late performance, including MDR-1, MDR-4, MDR-3 and required notifications, with a maximum of 720 daily rates. Using an invalidated NSP falls under § 4, with a maximum of 240 daily rates; § 5 addresses a minor case. These are not automatic penalties for every board member.

Assess the act, intent and culpability. Article 9 § 3 KKS also concerns someone managing economic, particularly financial, affairs under law, a decision, contract or actual conduct. Task allocation is relevant evidence; assigning the form to an adviser does not alone determine liability.

For historical failures, Article 2 § 2–3 KKS requires comparison of laws with regard to the more lenient law, without combining favourable fragments of both. Paragraph 6 concerns an adjudicated act that is no longer punishable. Neither universal remission nor unchanged punishability can be promised. A voluntary disclosure under Article 16 requires a separate review of all its conditions and exclusions.

Analysis note, professional secrecy and filing evidence

A recommended note should reconstruct the decision: the arrangement and stages, participants and countries, each hallmark, role, trigger, transition, conclusion and responsible person. Attach factual sources and evidence of filings and notifications. Do not backdate it: a later analysis may organise earlier evidence but should disclose when it was prepared.

The Tax Ordinance does not generally require a board resolution declaring that no arrangement exists. Articles 180–181 and 191 allow a broader assessment of lawful evidence; a note is neither the only evidence nor automatic protection. After Articles 86l–86m were repealed, an internal MDR workflow remains our organisational recommendation. Assess the company's other legal duties separately.

A promoter covered by Article 86b § 4 does not submit information that would breach statutory professional secrecy. It notifies the commissioning promoter in writing or, if there is none, the commissioning beneficiary, without delay and no later than seven days after the § 1 period starts, supplying the required data (§ 4a). This applies to the specified professions and is no longer limited to non-standardised arrangements. A service contract cannot freely reallocate statutory duties.

A beneficiary notified under § 4a reports even if it disagrees with the classification, after verifying the data. If notification arrived after its deadline, it acts without delay and within 14 days at the latest (Article 86c § 2 and 5). Keep delivery evidence. Check recipients and the legal scope before circulating documents or identifying data throughout the group.

The common mistake: one answer to three questions

Separate whether an arrangement and reporting duty exist, whether the tax treatment is correct, and whether a particular person is liable for a failure. An NSP confirms classification of the described arrangement, not the truth of the facts or legality of the tax treatment (Article 86g § 6–7).

Article 14b § 2a(4) excludes new individual-ruling applications on MDR. Article 20 of the amendment preserves the former provisions for earlier proceedings not concluded with legal finality before commencement. Following a refusal to assign an NSP because no reportable arrangement exists has the protective significance in Article 86i § 7 for the filer and participants; a refusal for missing form data is different.

Closing the reorganisation assessment

1. Establish the entire plan and earliest triggers, not only the KRS date.
2. Reconstruct former obligations and exemptions for pre-reform projects.
3. Check the cross-border conditions and every applicable hallmark, including specific hallmarks without the main benefit test.
4. Allocate roles, deadlines, notifications and supplements; document reliance on another report.
5. Separate MDR from neutrality, GAAR and fiscal penal liability.
6. Keep sources, forecasts, the dated note, submitted documents and official receipts; schedule subsequent reports.

Sources cited

Explanatory translation of the Polish guide; the Polish legislation is authoritative. Historical provisions are identified separately.

• Tax Ordinance, Dz.U. 2026 item 622, as amended — current rules. Official source
• Tax Ordinance — text published in May 2026, historical comparison. Official source
• Act of 29 May 2026, Dz.U. item 846 — amendment and transition. Official source
• Fiscal Penal Code, Dz.U. 2025 item 633, as amended. Official source
• KAS — MDR structures, templates and periods of application. Official source

Related e-book

The related Polish-language volume in the Biblioteka Restrukturyzacji series is in the e-book catalogue. Check its edition date and scope. This guide does not replace analysis of an individual project.

Legal basis as at 13 October 2026: Tax Ordinance, Articles 12, 14b § 2a(4), 86a–86o; amendment, Dz.U. 2026 item 846, Articles 1(2), 1(24)–(39), 6, 8(1)–(2), 20, 23–27 and 35; Fiscal Penal Code, Articles 1, 2, 4, 9 § 3, 16 and 80f. Also Tax Ordinance Articles 180–181 and 191.