A merger plan or a division plan almost always contains a sentence to the effect that the successor succeeds to all the rights and obligations of its predecessor. Under the Commercial Companies Code (Kodeks spółek handlowych, the CCC) that is true; in tax law it settles nothing. Articles 93–93e (art. 93–93e) of the Tax Ordinance (Ordynacja podatkowa) build three models: full succession on a merger and on the conversion of companies, partial succession on a division, and narrowed succession on the conversion of a sole trader into a capital company. Alongside them a fourth mechanism operates which is not succession at all — liability for someone else's arrears. Confusing these regimes tends to be the most costly mistake made in a restructuring.
Three mechanisms plus liability
Succession must have its basis in a specific provision, and the list of bases is closed. The Director of the National Revenue Information Service (Dyrektor Krajowej Informacji Skarbowej, the Director of the KIS) puts this plainly: "In those provisions the legislature has set out a closed list of situations in which tax succession occurs" (individual tax ruling of the Director of the KIS of 31 March 2025, no. 0114-KDIP2-1.4010.64.2025.3.MR1) (translation by the author).
Article 93e also requires Articles 93–93d to be applied only to the extent that separate statutes do not provide otherwise. So check whether the statute governing the particular attribute contains an exclusion of its own.
The scope of succession by type of transaction
| Transaction | Basis of succession | Scope | What calls for separate action |
|---|---|---|---|
| Merger by acquisition or by formation of a new company | Article 93 § 1 and § 2 of the Tax Ordinance | All rights and obligations of the merging companies, including those from closed periods | The losses of both parties; the right to lump-sum corporate income tax (Estonian CIT); the NIP of the acquired company |
| Conversion of a company into another company | Article 93a § 1 and § 2(1) of the Tax Ordinance | All rights and obligations — the same entity continuing in a new form | Whether preferences can be continued; the consequences for the shareholders; closing the books |
| Conversion of a sole trader into a single-member capital company | Article 93a § 4 of the Tax Ordinance; Article 584(2) § 1 of the CCC | Rights connected with the business only, excluding those that cannot be continued in CIT | PIT up to the conversion date; the loss; the NIP; Article 112b; a ruling of the company's own |
| Division by acquisition or by formation of new companies | Article 93c § 1 and § 2 of the Tax Ordinance | Rights and obligations connected with the assets listed in the division plan; the organised part of an enterprise (ZCP) condition | Allocation of the assets in the plan; separating closed items from open items (stany otwarte) |
| Division by spin-off or by separation | Article 93c § 1 and § 2 of the Tax Ordinance | As above; the ZCP condition applies to the assets remaining as well | ZCP documentation for both parts; the absence of a ZCP moves the matter to Article 117 |
| Acquisition of an enterprise or of a ZCP | Article 112 of the Tax Ordinance; Article 91(9) of the VAT Act (no basis in Articles 93–93c) | No universal succession; the acquirer continues the VAT adjustments and is liable for the transferor's arrears | The certificate under Article 306g; due diligence; PCC |
Merger and conversion of a company: the full model
On a merger, succession covers the whole of the predecessor's tax position, not only rights already exercised. The basis is Article 93 § 1 of the Tax Ordinance, applied — under § 2 — mutatis mutandis to a merger by acquisition. This is confirmed by the case law on the two-year shareholding period that conditions the dividend exemption under Article 22(4a) (art. 22 ust. 4a) of the Corporate Income Tax Act (ustawa o podatku dochodowym od osób prawnych, the CIT Act): the Supreme Administrative Court (Naczelny Sąd Administracyjny) held that the time for which the shares in the acquired company were held counts towards that period (judgment of the Supreme Administrative Court of 1 July 2025, case ref. II FSK 1303/22). Giving effect to that judgment, the Director of the KIS held the taxpayer's position to be correct (individual tax ruling of the Director of the KIS of 25 March 2026, no. 0111-KDIB1-1.4010.416.2021.10.BS). The conclusion reaches further than withholding tax: succession under Article 93 also covers items still running, unless the statute expressly excludes this.
The conversion of a company works in a similar way, but the mechanism there is the continuity of a single entity in a new legal form (Article 93a § 1 and § 2(1) of the Tax Ordinance). If a preference is tied to a legal form or to a taxpayer's status, continuity will fail despite succession.
Conversion of a sole trader: Article 93a § 4 and its limits
Here the legislature wrote something narrower than the Commercial Companies Code. Article 584(2) § 1 of the CCC: the converted company holds all the rights and obligations of the sole trader being converted. Article 93a § 4 of the Tax Ordinance: a single-member capital company arising from the conversion of a sole trader succeeds to the rights of the sole trader being converted that are provided for in tax law and connected with the business carried on, except for those rights that cannot be continued under the provisions governing the taxation of capital companies.
The difference is threefold: the provision lists rights, not rights and obligations; it limits them to rights connected with the business; and it adds a test of continuity in CIT. The Director of the KIS stresses that the analysis does not stop at the Tax Ordinance: "in order to determine the scope of the rights and obligations taken over by the legal successor, an assessment must be made not only of the provisions of the Tax Ordinance but also of other legal acts" (individual tax ruling of the Director of the KIS of 30 May 2025, no. 0114-KDIP2-2.4010.169.2025.1.RK/AS). The authority also confirmed that expenditure incurred before the conversion date but deductible after it is recognised as a cost by the company.
There are three consequences. A loss from the sole trader's business will not reduce the company's income — it is not a right capable of being continued in CIT. The natural person remains the PIT taxpayer for the periods up to the conversion date, and it is he who files the return and any corrections. A ruling issued to the sole trader in PIT will give the company no protection in CIT, because the right it concerns cannot be continued under the regime for capital companies — the company needs an application of its own. The obligations do not disappear: Article 112b of the Tax Ordinance makes the company jointly and severally liable with the natural person for the sole trader's arrears that arose up to the conversion date. We describe the process in our article Converting a sole trader into a sp. z o.o..
Division: the connection criterion and the open-items test
Article 93c § 1 of the Tax Ordinance transfers to the acquiring or newly formed company only those rights and obligations of the company being divided that remain connected with the assets allocated to it in the division plan. Article 93c § 2 adds the ZCP condition — on a spin-off and on a separation, for the assets remaining as well.
The authority names this model expressly: "This is therefore not a full universal succession; one may rather speak of a partial universal succession" (individual tax ruling of the Director of the KIS of 24 August 2026, no. 0114-KDIP4-1.4012.437.2026.1.SK). What decides the matter is the grammatical tense: the legislature wrote "remain", not "remained". From this the Director of the KIS derives a consistent test: "only 'open items' may be the subject matter of succession, that is, rights and obligations which, as at the spin-off date, still 'remain' connected with the (…) assets allocated"; partial succession means "the continuation — from the spin-off date — of the tax accounting previously carried on by the company being divided, and not (…) the taking over (…) of the whole of the accounting (…) for the period before the division" (ruling no. 0114-KDIP2-1.4010.64.2025.3.MR1).
The authority takes that test from the case law. In two judgments handed down on the same day — of 16 June 2021, case ref. II FSK 3523/18 and case ref. II FSK 3522/18 — the Supreme Administrative Court formulated it in those very terms: "The use of the present tense means that only open items may be the subject matter of succession, that is, rights and obligations which, as at the spin-off date, still remain connected with the assets allocated to the acquiring company". The Court went on to say what succession does not cover: "Succession does not therefore extend to those rights and obligations which, under the tax provisions in force, had already been assigned before the division to the person of the taxpayer being divided". The construction is confirmed by the judgment of 23 May 2024, case ref. III FSK 741/23, and the organised part of an enterprise condition in Article 93c § 2 by the judgment of 5 June 2024, case ref. III FSK 1030/23.
One reservation is necessary here. The "open items" rule does not operate in the same way on the side of obligations as it does on the side of entitlements. In the judgment in III FSK 741/23 cited above, ruling on the status of a party and on an application for a finding of overpayment, the Supreme Administrative Court took the view that the acquiring company "may therefore exercise the rights of a taxpayer (…) irrespective of whether its claim relates to a period before or after the spin-off", and that what decides the matter is solely the connection between the claim and the assets allocated. For current tax accounting, then, the spin-off date governs; for pursuing an overpayment, the connection with the assets does. In planning a division it is worth keeping those two situations apart instead of applying a single test to both.
Putting this into practice is straightforward. If revenue or a cost crystallised before the spin-off date, it is accounted for by the company being divided; if it crystallises on the spin-off date or later, by the successor, regardless of whose books the earlier flows were recorded in. The authority confirmed this in relation to fees settled by way of advance payments: "after the division has been registered, the revenue (…) should be reported by the Acquiring Company. That is not altered by the fact that the Advance Payments previously received on that account (…) were recorded in the accounting books of the Company Being Divided" (individual tax ruling of the Director of the KIS of 11 June 2025, no. 0111-KDIB1-1.4010.192.2025.1.AW).
The same applies to corrections: the right to deduct under a corrective invoice in plus received after the division date was assigned to the acquiring company. We therefore recommend that the succession matrix assign to each item not only an asset but also the date on which it crystallised; without that column, a dispute with the authority turns into a dispute about evidence. We describe the separation requirements for both parts in our article Division by spin-off and by separation.
Decisions and rulings: Article 93d and the protection under Articles 14k–14n
Article 93d of the Tax Ordinance extends Articles 93–93c to rights and obligations arising out of decisions issued under provisions of tax law. Decisions therefore cannot fall out of the succession matrix.
Rulings work differently: their protective force does not follow from service alone. The Director of the KIS formulates the rule precisely: "the right to protection (…) will pass to the successor provided that it was vested in the predecessor. For such a right to protection to pass to the successor by way of succession, the predecessor must therefore have acted in accordance with the individual tax ruling" (individual tax ruling of the Director of the KIS of 27 August 2026, no. 0111-KDIB2-1.4017.9.2026.1.AJ). Since the company had acted in accordance with the rulings it had received, the authority confirmed the protection of the converted company on the basis of Article 93a § 1(1).
Hence four control questions: did the predecessor act in accordance with the ruling; do the facts remain the same; does the right fall within the scope of the applicable basis of succession; and — on a division — does it relate to the business passing to the successor? Where the answer is uncertain, apply for a ruling of your own.
Liability for another's arrears: Articles 112 and 117
The acquisition of an enterprise or of a ZCP is not succession under Articles 93–93c. It does, however, trigger Article 112 of the Tax Ordinance: the acquirer is jointly and severally liable with the transferor, with all its assets, for arrears connected with the business carried on that arose up to the date of acquisition, unless it could not have known of them while exercising due care. The limit is the value of the enterprise or of the ZCP acquired.
The exposure is reduced by a certificate of the amount of the transferor's arrears, issued under Article 306g on the application of the transferor or of the acquirer with the transferor's consent. The acquirer is not liable for arrears not shown in the certificate (Article 112 § 6), and where more than 30 days have elapsed between its issue and the date of the disposal, the acquirer is also liable for arrears arising after it was issued (Article 112 § 7). The thirty-day period is therefore part of the transaction timetable. Article 112a disapplies Article 112 where the acquisition takes place in enforcement or insolvency proceedings.
For divisions, the counterpart is Article 117 of the Tax Ordinance: where the assets taken over — and, on a spin-off and a separation, the assets of the company being divided as well — do not constitute a ZCP, the acquiring or newly formed companies are jointly and severally liable for the arrears of the company being divided up to the value of the net assets acquired in accordance with the division plan. The very circumstance that excludes succession under Article 93c opens up liability under Article 117; the authority rules on that liability by a separate decision under Article 108 § 1. We describe the merger structure in our article Merger by acquisition.
What does not pass, or passes only conditionally
| Tax attribute | Does it pass | Legal basis |
|---|---|---|
| The predecessor's loss: of the company acquired, divided or merged, and of the sole trader being converted | No; the exception is the conversion of a company into another company | Article 7(3)(4), Article 7(4)–(4b) and Article 7(4a) of the CIT Act |
| The taxpayer's own loss after taking over an entity or acquiring a ZCP | Conditionally; it falls away on a change in the principal line of business or of the owner | Article 7(3)(7) of the CIT Act |
| Small taxpayer status and the 9% rate | No; the status depends on the taxpayer's own revenue, and the rate is subject to a temporary exclusion | Article 4a(10) and Article 19(1a) of the CIT Act |
| The right to lump-sum corporate income tax | Not automatically; there is an exclusion by reference to the entity, and there are grounds for losing the right | Article 28k(1)(5) and (6) and Article 28l(1)(4)(c) of the CIT Act |
| Reliefs, permits and licences | Depends on the specific provision and on the content of the decision | Article 93e of the Tax Ordinance; Article 531 § 2 of the CCC |
The successor's formal obligations
Succession in substantive law does not take care of registration formalities. As a rule the tax identification number (NIP) does not pass to the successor; the exceptions cover the conversions specified in the Act on the rules for recording and identifying taxpayers and remitters (ustawa o zasadach ewidencji i identyfikacji podatników i płatników), including the conversion of a commercial company into another commercial company. On a merger by acquisition the number of the acquired company expires; on the conversion of a sole trader the company receives its own NIP.
Where the number changes, cash registers require re-fiscalisation or a change of details. VAT-R filings, the bank accounts on the white list of taxpayers, authorisations in KSeF (the National e-Invoicing System), e-Doręczenia (the national e-delivery service), powers of attorney for returns and representation in proceedings all have to be updated. Returns and corrections for the predecessor's periods are filed by the successor wherever the obligation is covered by succession; on a division this is settled separately for each period. Establish the closing of the books as well: the exceptions in the Accounting Act (ustawa o rachunkowości), including the fact that the books of the company being divided are not closed on a spin-off or a separation, do not override the obligations under Article 9(2e)–(2g) of the CIT Act and Article 24(3g)–(3h) of the Personal Income Tax Act (ustawa o podatku dochodowym od osób fizycznych, the PIT Act).
The most common mistake
The most common mistake has two versions, both growing out of the assumption that because the successor has succeeded to the rights and obligations, it has taken over everything.
The first concerns losses: the acquiring company, relying on Article 93 of the Tax Ordinance, uses the loss of the acquired company. That is incorrect. Article 7(3)(4) of the CIT Act requires the losses of sole traders and companies being converted, merged, acquired or divided to be disregarded in determining income, and the exception relates to the conversion of a company into another company, not to a merger of two taxpayers. Succession changes nothing here: the tax statute has introduced an exclusion of its own, to which Article 93e refers. Assess separately the restriction on the acquiring company's own loss under Article 7(3)(7) of the CIT Act. How to avoid this: before the merger plan is signed, draw up a schedule of both entities' losses by year and by source, and check whether the transaction changes the principal line of business or the ownership structure.
The second concerns the acquisition of an enterprise or of a ZCP without a certificate of the transferor's arrears. The parties assume that, because the transaction is excluded from VAT under Article 6(1) of the VAT Act (ustawa o podatku od towarów i usług), there is nothing left for the acquirer to deal with. Yet Article 112 of the Tax Ordinance creates joint and several liability up to the value of the assets acquired, and the only statutory limiter is the certificate under Article 306g. How to avoid this: apply for it with the transferor's consent, write its production into the contract as a condition precedent, and plan for the transfer of title to take place within 30 days of its issue.
Summary
- Establish the basis of succession before its scope: Article 93 for a merger, Article 93a § 1–2 for the conversion of a company, Article 93a § 4 for the conversion of a sole trader, Article 93c for a division. No basis means no succession.
- On a division, build a matrix with two axes: the asset from the division plan and the date on which the right or obligation crystallised.
- Verify the ZCP on both sides of a spin-off and of a separation. The absence of a ZCP switches off Article 93c and triggers liability under Article 117 of the Tax Ordinance.
- Review the predecessor's rulings for whether they were acted upon and whether the facts are the same; where the answer is uncertain, apply for a ruling of your own.
- On the acquisition of an enterprise or of a ZCP, obtain the certificate under Article 306g and keep to the thirty-day window; establish separately what does not pass: losses, small taxpayer status, the right to the lump-sum regime, the NIP.
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 31 March 2025, no. 0114-KDIP2-1.4010.64.2025.3.MR1 — succession to tax rights and obligations on a division by spin-off; the "open items" test. https://eureka.mf.gov.pl/informacje/podglad/633149
- Individual tax ruling of the Director of the National Revenue Information Service of 11 June 2025, no. 0111-KDIB1-1.4010.192.2025.1.AW — accounting for revenue and tax-deductible costs in connection with a division of a company. https://eureka.mf.gov.pl/informacje/podglad/644003
- Individual tax ruling of the Director of the National Revenue Information Service of 30 May 2025, no. 0114-KDIP2-2.4010.169.2025.1.RK/AS — Article 93a § 4 of the Tax Ordinance; costs incurred before the date of the conversion of a sole trader and deductible after that date. https://eureka.mf.gov.pl/informacje/podglad/643018
- Individual tax ruling of the Director of the National Revenue Information Service of 27 August 2026, no. 0111-KDIB2-1.4017.9.2026.1.AJ — whether a converted company may act in accordance with rulings issued to its predecessor. https://eureka.mf.gov.pl/informacje/podglad/706952
- Individual tax ruling of the Director of the National Revenue Information Service of 24 August 2026, no. 0114-KDIP4-1.4012.437.2026.1.SK — deduction of input tax under a corrective invoice in plus received after the division date. https://eureka.mf.gov.pl/informacje/podglad/706598
- Judgment of the Supreme Administrative Court of 1 July 2025, case ref. II FSK 1303/22 — succession under Article 93 § 1 and § 2(1) and Articles 93a and 93e of the Tax Ordinance and the running of the two-year period under Article 22(4a) of the CIT Act; the case concerns a reverse merger, not a division. Judgment of the court of first instance set aside and the case remitted for re-examination. Final judgment. https://orzeczenia.nsa.gov.pl/doc/76B69329D5
- Judgment of the Provincial Administrative Court in Gdańsk of 2 December 2025, case ref. I SA/Gd 805/25 — judgment given after re-examination of the case concluded by the judgment in II FSK 1303/22; the individual tax ruling under appeal set aside. Final judgment. https://orzeczenia.nsa.gov.pl/doc/5B13CB5A22
- Individual tax ruling of the Director of the National Revenue Information Service of 25 March 2026, no. 0111-KDIB1-1.4010.416.2021.10.BS — giving effect to the above judgments; the taxpayer's position held to be correct. https://eureka.mf.gov.pl/informacje/podglad/684246
- Judgment of the Supreme Administrative Court of 16 June 2021, case ref. II FSK 3523/18 — succession under Article 93c § 1 and § 2 of the Tax Ordinance; the "open items" rule; judgment of the court of first instance and the individual tax ruling set aside. Final judgment. https://orzeczenia.nsa.gov.pl/doc/36CFAAA839
- Judgment of the Supreme Administrative Court of 16 June 2021, case ref. II FSK 3522/18 — a decision to the same effect, given on the same day by a differently composed reporting bench. Final judgment. https://orzeczenia.nsa.gov.pl/doc/3AF51B6C6B
- Judgment of the Supreme Administrative Court of 23 May 2024, case ref. III FSK 741/23 — partial universal succession under Article 93c § 2 of the Tax Ordinance; the exercise of the rights of a taxpayer by the acquiring company in proceedings for a finding of overpayment; cassation appeal dismissed. Final judgment. https://orzeczenia.nsa.gov.pl/doc/E533309F6B
- Judgment of the Supreme Administrative Court of 5 June 2024, case ref. III FSK 1030/23 — the organised part of an enterprise condition as a requirement of legal succession under Article 93c of the Tax Ordinance; judgment set aside and the case remitted for re-examination. Final judgment. https://orzeczenia.nsa.gov.pl/doc/F01A8D19C8
E-book references
Tax succession and transitional settlements on the conversion of a sole trader into a sp. z o.o. and on the division of a company are discussed at greater length in the e-books JDG → spółka z o.o. and Podział spółki: wydzielenie czy wyodrębnienie? (Zbyszko Pora, JTWPOLAND) from the Biblioteka Restrukturyzacji series. The PDF files are available free of charge in the e-book section; the publications are in Polish.
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Get in touch →Legal basis: Act of 29 August 1997 — Tax Ordinance (Dz.U. z 2026 r. poz. 622, as amended), in particular Article 93, Article 93a, Article 93c, Article 93d, Article 93e, Articles 14k–14n, Article 108, Article 112, Article 112a, Article 112b, Article 117 and Article 306g; Act of 15 September 2000 — Commercial Companies Code (Dz.U. z 2024 r. poz. 18, as amended), in particular Article 494, Article 529, Article 531, Articles 551–553 and Articles 584(1)–584(2); Act of 15 February 1992 on corporate income tax (Dz.U. z 2026 r. poz. 554, as amended), in particular Article 4a(4) and (10), Article 7(3)(4) and (7) and Article 7(4)–(4b), Article 9(2e)–(2g), Article 19(1a), Article 28k and Article 28l; Act of 26 July 1991 on personal income tax (Dz.U. z 2026 r. poz. 592, as amended), in particular Article 24(3g)–(3h); Act of 11 March 2004 on the tax on goods and services (Dz.U. z 2025 r. poz. 775, as amended), in particular Article 6(1) and Article 91(9); Act of 9 September 2000 on the tax on civil law transactions (Dz.U. z 2026 r. poz. 191); Act of 29 September 1994 on accounting (Dz.U. z 2026 r. poz. 522, as amended), in particular Article 12; Act of 13 October 1995 on the rules for recording and identifying taxpayers and remitters; Act of 16 August 2023 amending the Commercial Companies Code and certain other acts (Dz.U. z 2023 r. poz. 1705)