A merger by acquisition requires separate analysis of the acquirer and shareholders. Article 12(1)(8ba), (8c), (8d) and (8f) CIT define distinct revenue categories. Not each has a separate exclusion: 8d has its own exception for a specified KSH procedure; otherwise, determine whether any excess exists. The following sections separate these tests, evidence, losses and corporate procedure.
The Commercial Companies Code route: what the procedure settles and what it does not
Proposition. Carrying out the corporate procedure correctly is a condition of the merger taking effect, but it does not determine its tax consequences.
Statutory basis. A merger by acquisition consists in the transfer of all the assets of the acquired company to the acquiring company in exchange for shares or stock allotted to the shareholders of the acquired company (Article 492 § 1(1) (art. 492 § 1 pkt 1) of the Commercial Companies Code (Kodeks spółek handlowych, the CCC)). On the merger date — the date of entry in the register competent for the acquiring company's registered office — the acquired company is struck from the register (Article 493 § 1–2 of the CCC) and the acquiring company succeeds to all its rights and obligations (Article 494 § 1 of the CCC). Tax succession is added by Article 93 of the Tax Ordinance (Ordynacja podatkowa).
Practice. The procedure includes a plan and annexes (Articles 498–499 of the Commercial Companies Code), publication or availability of the plan (Article 500), the applicable reports and examination, notices, resolutions and registration. Requirements depend on the configuration. Simplifications appear, among other places, in Articles 503¹ and 516; there is no exhaustive list of only two exceptions. Unanimous shareholder consent may remove the elements listed in Article 503¹ §1, subject to §2 for an acquiring joint-stock company. A wholly owned subsidiary merger requires assessment of Article 516 §6 and the own-share prohibition in Article 514 §1. Not every simplified merger means no share issuance or no taxable revenue.
Takeaway. The consent of all the shareholders shortens the procedure, but it changes none of the tax tests and does not replace the analysis described in our article on tax neutrality in restructurings. Build the tax timetable around the date of entry in the KRS register.
The acquiring company: Article 12(1)(8c) and the exclusion in Article 12(4)(3e)
Proposition. Article 12(1)(8c) CIT concerns market value of transferred assets exceeding their tax values, capped at their market values. The exclusion in paragraph 4(3e) requires the two conditions below as well as relevant entity and anti-avoidance conditions. Point 3g can cover a different cross-border situation.
Statutory basis. Article 12(1)(8c) CIT requires the market value of the assets received to be determined as at the day before the merger. This is the valuation date, not a statement that the taxable event precedes the merger. The exclusion in Article 12(4)(3e) requires both continuation of the predecessor’s tax-book values and allocation of the assets to business conducted in Poland, including through a Polish permanent establishment of a non-resident. This describes that particular exclusion; other cross-border configurations require, among other things, examination of point 3g and the entity conditions in paragraphs 15–16.
Practice. Rulings 0111-KDIB1-1.4010.141.2025.2.MF of 2 June 2025 and 0111-KDWB.4010.12.2025.2.KP of 11 June 2025 relied on stated tax-value continuity and Polish business allocation. Valuation differs from adding book balances. In ruling 0111-KDIB1-1.4010.74.2025.2.SH of 2 April 2025, the authority discussed a suitable method covering assets and liabilities, related loan principal affecting both asset and issue values, and exclusion of interest, charges, provisions and write-downs from that calculation, referring among other reasons to double counting of costs. This is a position on those facts, not a universal valuation formula.
Takeaway. Prepare a record of tax values as at the day preceding the merger date, reconciled to the register of fixed assets and intangible assets. Document the allocation of the assets to business in Poland separately — it is a free-standing condition, not a consequence of the first one.
Where the acquiring company is a shareholder in the acquired company: points (8d), (8f) and issue value
Proposition. Which revenue provision applies on the acquiring company's side depends on the size of its holding in the share capital of the acquired company.
Statutory basis. Point 8d concerns transferred market value exceeding the issue value of allocated shares. Since 18 September 2025 it expressly excepts a merger without allocating shares under Article 515¹(1) KSH: one shareholder directly or indirectly owns all shares in the merging companies, or the shareholders have identical proportions in all of them. No new issue alone does not satisfy that exception. Point 8f tests the acquirer’s proportion of asset value above its acquisition price for shares in the target; paragraph 4(3f) requires at least 10% ownership and the other applicable conditions. Article 4a(16a) issue value follows the articles or company agreement, or an equivalent document if absent, and cannot be below share market value. It is not automatically nominal value.
Practice. In the ruling of 11 June 2025, no. 0111-KDWB.4010.12.2025.2.KP, the Director of the KIS explained how the two provisions relate to each other: "Article 12(1)(8d) and Article 12(1)(8f) of that Act are complementary. If the acquiring company holds no shares (stock) in the acquired company, only Article 12(1)(8d) applies. If it holds 100% of the shares (stock), only Article 12(1)(8f) applies".
Takeaway. Establish ownership on the day before the merger and the actual KSH procedure. At 100% assess point 8f and exclusion 3f; partial ownership can require both 8d and 8f. For a sister-company merger allocating shares, test their issue value. Under 515¹(1), first examine the 8d exception while retaining the 8c and other analyses. The quoted June 2025 ruling predates this exception.
The shareholder of the acquired company: Article 12(1)(8ba) and Article 12(4)(12)
Proposition. CIT requires a shareholder revenue exclusion; PIT provides conditional deferral. Share history and tax-value continuity do not replace entity or anti-avoidance conditions. The acquirer’s result does not determine the shareholder’s.
Statutory basis. The shareholder's revenue is the issue value of the shares allotted to him by the acquiring company (Article 12(1)(8ba) of the CIT Act). Article 12(4)(12) of the CIT Act excludes that revenue where, cumulatively: the shares in the acquired entity were not acquired or taken up as a result of an exchange of shares, or allotted as a result of another merger or division; and the value of the new shares taken by the shareholder for tax purposes is no higher than the value that would have been taken had the merger not taken place. The statute places the burden of proof expressly on the shareholder (Article 12(12b) of the CIT Act). For a natural person the starting point is Article 24(5)(7a) (art. 24 ust. 5 pkt 7a) of the Personal Income Tax Act (ustawa o podatku dochodowym od osób fizycznych, the PIT Act), and the deferral follows from Article 24(8) in conjunction with Article 24(8da) and (8db) of that Act; a cash payment is accounted for separately (Article 24(5)(6) of the PIT Act).
Practice. Ruling 0111-KDIB1-1.4010.74.2025.2.SH of 2 April 2025 relied on the described history from 2000, capital increases, a 2006 merger issuing no new shares and a 2007 share purchase. The authority did not investigate that history as evidence: non-reorganisation origin was an assumed fact. The favourable result also relied on stated tax-value continuity, economic reasons and the qualifying Dutch company form. It is not a rule based solely on acquisition date or a factual finding by the authority.
Takeaway. Prepare a share history record for each shareholder: the date and manner of acquisition, the tax cost, any earlier reorganisations. An individual tax ruling is no substitute for that evidence — it protects only where the facts match the description.
Who recognises revenue on a merger by acquisition, when and on what basis
| Entity | Revenue provision | Exclusion provision | Condition that has to be established |
|---|---|---|---|
| Acquiring company — assets acquired | Article 12(1)(8c) of the CIT Act | Article 12(4)(3e) of the CIT Act | the assets taken up at the value from the acquired company's tax books, and allocated to business in Poland |
| Acquiring company holding no shares in the acquired company | Article 12(1)(8d) of the CIT Act | no separate exclusion; a statutory exception for the route in Article 515¹ § 1 of the CCC | exception: satisfy Article 515¹(1) KSH; otherwise no excess above issue value, taking ownership structure into account |
| Acquiring company holding shares in the acquired company | Article 12(1)(8f) of the CIT Act | Article 12(4)(3f) of the CIT Act | a holding in the acquired company's share capital of not less than 10% on the last day before the merger |
| Shareholder of the acquired company (CIT) | Article 12(1)(8ba) of the CIT Act | Article 12(4)(12) of the CIT Act | shares not acquired in an exchange of shares or in an earlier merger/division, and carry-over of their tax value (burden of proof — Article 12(12b) of the CIT Act) |
| Shareholder of the acquired company (PIT) | Article 24(5)(7a) of the PIT Act | Article 24(8) in conjunction with Article 24(8da) and (8db) of the PIT Act | the conditions as to the entities involved, the history of the shares and the carry-over of value; no circumstances within Article 24(19)–(20) of the PIT Act |
| Each of the above | — | Article 12(13)–(14) CIT; Article 24(19)–(20) PIT | valid economic reasons, and tax avoidance or tax evasion not being the main purpose or one of the main purposes |
The specific anti-avoidance clause in Article 12(13)–(14) of the CIT Act
Proposition. The specific anti-avoidance clause creates no new head of revenue — it withdraws the right to exclusions whose conditions have already been met.
Statutory basis. Article 12(13) of the CIT Act switches off, among others, Article 12(4)(3e)–(3h) and (12) where the main purpose or one of the main purposes of the merger is tax avoidance or tax evasion. Article 12(14) of the CIT Act establishes a presumption of such a purpose where the merger was not carried out for valid economic reasons.
Practice. In C-126/10 Foggia, judgment of 10 November 2011, ECLI:EU:C:2011:718, paragraphs 38–48 and the operative part require the circumstances to be assessed together. Lower administrative costs can be a commercial reason, but the described savings appeared marginal relative to the expected tax advantage; cost reduction also naturally follows a merger. This does not ban mergers of inactive or loss-making companies or establish a mechanical single-ratio test. The national court assesses all circumstances.
Takeaway. Explain what simplifying the structure actually achieves. Describe real reasons and alternatives and, where possible, quantify cost and financing effects. Organisational or regulatory goals can also matter without reducing to one amount. Keep evidence contemporaneously; the statute does not demand one document with a particular name.
Tax losses after the merger
Proposition. Succession under the Tax Ordinance does not carry losses across, and the acquiring company's own losses may cease to be available.
Statutory basis. Article 7(3)(4) and Article 7(4) of the CIT Act prevent the losses of acquired businesses from being taken into account; the exception for the conversion of one company into another company does not extend to a merger. Article 7(3)(7) of the CIT Act restricts the use of the acquiring company's own losses where, as a result of the acquisition, its actual core business has become wholly or partly different, or where at least 25% of the shares are held by entities that did not hold those rights on the last day of the tax year in which the loss was incurred.
Takeaway. The conditions in Article 7(3)(7) of the CIT Act are alternatives — one of them is enough. Check the direction of the merger (which company acquires which) before you take the decision, not after the plan has been signed.
Reverse mergers and the absence of a share capital increase
Proposition. The absence of a share capital increase does not mean that no shares were allotted to the shareholder, or that their issue value need not be determined.
Statutory basis. In the described reverse-merger variant, the subsidiary acquires its parent and allocates own shares acquired through the merger to the parent’s shareholders (Article 515(1) KSH). Assess 8c, 8d and 8ba CIT separately: exclusion 3e, absence of an 8d excess and the shareholder conditions in paragraph 4(12). The no-allocation route under 515¹(1) has its own 8d exception; these are distinct configurations.
Practice. The dispute is whether one can speak of an issue value at all where no new shares are issued. In a ruling of 27 August 2025, no. 0111-KDIB1-1.4010.340.2025.2.AND, the Director of the KIS held that one can: "in a reverse merger the parties to the transaction should likewise determine a 'market valuation', despite the absence of any actual issue of new shares (stock). Accordingly, in the case of the reverse merger in question, the value at which the shares (stock) are taken up will be the value of the assets of the acquired company, and this is precisely what is to be read as the issue value". The authority added that, since the acquiring company will issue its own shares to the shareholder, on the shareholder's side "taxable revenue will, as a rule, arise under Article 12(1)(8ba) of the CIT Act" — which is then removed by Article 12(4)(12) of the CIT Act. In a ruling of 24 March 2025, no. 0114-KDIP2-1.4010.34.2025.2.JF, concerning the same configuration, the authority held the position to be correct and dispensed with the legal reasoning for its assessment.
Takeaway. For the described reverse merger allocating own shares, establish the exchange ratio and a reliable valuation. The asset valuation annex under Article 499(2)(3) KSH has its own valuation date; it does not automatically replace the tax valuation on the day before the merger. Article 499(1)(2) requires a ratio unless no exchange occurs, with further statutory simplifications. Do not extend the requirement to every no-issue procedure without checking it. No 8d excess and the other exclusions require separate evidence.
PCC and VAT on a merger
Proposition. A merger of capital companies falls outside PCC, and the transfer of an enterprise or of an organised part of it falls outside the scope of the VAT Act — but both exclusions have limits.
Statutory basis and takeaway. Articles of association and amendments to them connected with a merger of capital companies are not subject to PCC under Article 2(6)(a) (art. 2 pkt 6 lit. a) of the Tax on Civil Law Transactions Act (ustawa o podatku od czynności cywilnoprawnych, the PCC Act); the exclusion also covers a capital increase forming part of such a merger, whereas configurations involving a partnership, and transactions separate from the merger, call for separate classification. For VAT, the transfer of an enterprise or of an organised part of an enterprise (ZCP) falls outside the VAT Act (ustawa o podatku od towarów i usług) under Article 6(1) (art. 6 pkt 1) of that Act — this is an exclusion of the Act's application, not an exemption — and the obligation to adjust input tax passes to the acquirer under Article 91(9) of the VAT Act. Where the acquired company no longer carries on business and holds only individual assets, the classification of the subject of the transfer has to be carried out afresh.
The most common mistake
Do not postpone reconstructing tax values until an audit. Article 12(4)(3e) CIT requires predecessor tax-book values and the proper business allocation. The day before the merger is the statutory valuation date; the merger and succession occur with the relevant registration. Preparing evidence in advance supports correct accounting and tax treatment.
A missing auxiliary schedule does not itself prove loss of the exclusion. Establish the actual tax values, asset allocation and all admissible evidence. Accounting fair-value measurement does not automatically step up tax depreciation values; Articles 16g(9) and 16h(3) CIT apply, among other rules. An incorrect entry or depreciation charge requires assessment and correction of its actual effects, not an assumption that the entire merger always loses neutrality.
Before resolutions, consider a schedule of each asset’s accounting, tax and planned successor values. Reconcile it with books, depreciation records, acquisition documents and returns; a CIT return alone does not contain every asset’s full history. Explain business allocation and separation of tax and accounting values. This is recommended evidence organisation, not the only statutorily admissible form.
Summary
- Assess 8c, 8d, 8f and 8ba separately, calculating only those relevant to the configuration. The preceding day is the statutory valuation date. For 8d test 515¹(1) or absence of an excess; for the others examine the applicable exclusions and conditions.
- Establish ownership and the KSH route. Depending on the facts assess 8d, 8f or both; distinguish new shares, allocation of own shares and no share allocation.
- Gather tax-value and business-allocation evidence in advance. Later records must faithfully reconstruct the facts; absence of a particular schedule does not itself create tax.
- Prepare a share history for every shareholder; the burden of proving the conditions in Article 12(4)(12) of the CIT Act rests on the shareholder (Article 12(12b) of the CIT Act).
- Check the losses in both companies separately — Article 7(3)(4) and Article 7(4) of the CIT Act for the acquired company, Article 7(3)(7) for the acquiring company's own losses — before you choose the direction of the merger.
Sources cited
All quotations from Polish-language sources — statutes, tax rulings and court judgments — are given here in the author's translation; the Polish wording is authoritative.
- Individual tax ruling of the Director of the National Revenue Information Service of 11 June 2025, no. 0111-KDWB.4010.12.2025.2.KP — the complementary nature of Article 12(1)(8d) and (8f) of the CIT Act; the exclusions in Article 12(4)(3e) and (3f). https://eureka.mf.gov.pl/informacje/podglad/643735
- Individual tax ruling of the Director of the National Revenue Information Service of 2 June 2025, no. 0111-KDIB1-1.4010.141.2025.2.MF — the two conditions for the exclusion in Article 12(4)(3e) of the CIT Act; Article 12(4)(3f) where the holding is 100%. https://eureka.mf.gov.pl/informacje/podglad/642518
- Individual tax ruling of the Director of the National Revenue Information Service of 2 April 2025, no. 0111-KDIB1-1.4010.74.2025.2.SH — the meaning of "market value of the assets"; Article 12(4)(12) of the CIT Act at the shareholder level; burden of proof. Date of issue per the document metadata: 2 April 2025; date of publication: 11 April 2025. https://eureka.mf.gov.pl/informacje/podglad/633563
- Individual tax ruling of the Director of the National Revenue Information Service of 27 August 2025, no. 0111-KDIB1-1.4010.340.2025.2.AND — issue value in a reverse merger without a share capital increase; the issue of own shares and Article 12(1)(8ba) of the CIT Act. https://eureka.mf.gov.pl/informacje/podglad/655651
- Individual tax ruling of the Director of the National Revenue Information Service of 24 March 2025, no. 0114-KDIP2-1.4010.34.2025.2.JF — reverse merger without a share capital increase; the authority held the position to be correct and dispensed with the legal reasoning for its assessment, so the ruling contains no reasoning of its own. https://eureka.mf.gov.pl/informacje/podglad/632474
- Judgment of the Court of Justice of the European Union of 10 November 2011 in Case C-126/10 Foggia — Sociedade Gestora de Participações Sociais SA v Secretário de Estado dos Assuntos Fiscais, ECLI:EU:C:2011:718 — paragraphs 47–48, on valid commercial reasons. https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62010CJ0126
Source use: four rulings (643735, 642518, 655651, 632474) were checked in official EUREKA exports; 633563 in a full-document reproduction. In 632474 the authority dispensed with its own reasoning. Foggia is discussed from official passages 38–48 and the operative part, not an exhaustive case-law review. The 2025 rulings must be read with the later exception in Article 12(1)(8d) CIT.
CIT PIT KSH VAT PCC Ordynacja podatkowa 2025/1218
E-book references
Selected restructuring topics are discussed at greater length in the e-book series Biblioteka Restrukturyzacji (Restructuring Library; Zbyszko Pora, JTWPOLAND): converting a sole trader into a sp. z o.o., the partial division or division by separation of a company, the test for an organised part of an enterprise, and MDR obligations in restructurings. The PDF files are available free of charge in the e-book section. The series is currently published in Polish; selected titles are also available in English, German, Chinese and Korean.
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Get in touch →Legal basis: Act of 15 September 2000 — Commercial Companies Code (consolidated text: Dz.U. z 2024 r. poz. 18, as amended) — Articles 491–494, 498–508, 514, 515, 515¹ and 516.; Act of 15 February 1992 on corporate income tax (consolidated text: Dz.U. z 2026 r. poz. 554, as amended) — Article 4a(16a); Article 7(3)(4) and (7) and Article 7(4); Article 12(1)(8ba), (8c), (8d) and (8f); Article 12(4)(3e), (3f) and (12); Article 12(12b) and Article 12(13)–(16); Article 26(1).; Act of 26 July 1991 on personal income tax (consolidated text: Dz.U. z 2026 r. poz. 592, as amended) — Article 24(5)(6) and (7a), Article 24(8), Article 24(8da) and (8db), Article 24(19)–(20).; Act of 11 March 2004 on the tax on goods and services (consolidated text: Dz.U. z 2026 r. poz. 1263) — Article 2(27e), Article 6(1), Article 91(9).; Act of 9 September 2000 on the tax on civil law transactions (consolidated text: Dz.U. z 2026 r. poz. 191) — Article 1(1)–(3), Article 2(6)(a).; Act of 29 August 1997 — Tax Ordinance (consolidated text: Dz.U. z 2026 r. poz. 622, as amended) — Article 93, Articles 93d–93e, Articles 14k–14m and 14na, Articles 119a and 119c.; Act of 29 September 1994 on accounting (consolidated text: Dz.U. z 2026 r. poz. 522, as amended) — Article 12, Articles 44a–44c, Article 64(3).; Council Directive 2009/133/EC of 19 October 2009 (Dz.Urz. UE L 310 z 25.11.2009, s. 34).