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Journal of Business Law 10/2021

ISBN: 0137-5490
Pages: 68
Publication date: 2021
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2021.10.1
JEL: K34

The aim of this article is to assess the degree of the implementation of the best practices concerning tax rulings developed under Action 5 of the BEPS Project in Polish tax law. The authors present the current situation of Poland's tax ruling system. Then, the authors assess the degree of implementation of each best practice. The authors also formulate critical comments on the OECD's best practices. In the opinion of the authors, the Polish tax ruling regulation generally meets most of the OECD's requirements, primarily because it is a fully transparent system.

Keywords: Poland; OECD; Base Erosion and Profit Shifting (BEPS); tax law; private tax ruling
DOI: 10.33226/0137-5490.2021.10.2
JEL: K20, G21, G34

Since 2016 the Bank Guarantee Fund (BGF), as a special resolution regime authority, may impose financial penalties on members of certain financial institution authorities (including banks, credit unions) who fail to comply with reporting and information obligations related to this restructuring. The Act on BGF specifies the conditions for imposing and the maximum amount of financial penalties, as well as the directives for measuring the amount of fines and allocating the proceeds from the fines paid. In the remaining scope, relating to the limitation period of penalties, the calculation of interest on outstanding penalties and the application of exemptions of their payment, the universal regulations of the Code of Administrative Procedure on administrative fines shall apply. The study shows that the financial penalties imposed by the BGF are an important repressive and preventive legal measure that strengthens the position of BGF when using legal instruments of special resolution regime. A financial penalty may also perform a restitution function, as its application should lead to the performance by the punished person of the reporting and information obligations necessary for the proper conduct of restructuring processes. In conclusion, it was assessed that the financial penalties imposed by the BGF are of a specific nature determined by many factors, including the status and tasks of the BGF, the purposes of applying these fines, and the influence of members of the authorities on the functioning of financial institutions subject to special resolution regime. The effect of properly conducted special resolution regime should not only prevent the bankruptcy of a specific financial institution, but also improve the situation on the financial market in general.

Keywords: financial market; special resolution regime; financial penalty; member of a financial institution authority; Bank Guarantee Fund
DOI: 10.33226/0137-5490.2021.10.3
JEL: K23

The provisions of the telecommunications law regulate the conduct of auctions in order to allocate the frequencies necessary to provide services in 5G technology. For the first time, the regulations provide for security requirements for telecommunications infrastructure. The subject of the analysis is to answer the question what are the legal remedies and which entities are entitled to use them at various stages of the auction, as well as in the period preceding it. In particular, it was examined whether it is possible to bring appeals against acts or actions in the field of public administration undertaken in the period preceding or commencing the auction.

Keywords: complaint; administrative act; administrative action; telecommunications auction; frequency allocation
DOI: 10.33226/0137-5490.2021.10.4
JEL: K21, K29, H71

The use of private intermediaries constitute one of the aspect of the privatization of public tasks whereby these intermediaries use the funds obtained from the State to conclude business contracts with undertakings thus fulfilling public policy objectives. From a State aid perspective, this raises the challenge when intermediaries' activities shall be imputable to the State to fall within the ambit of State aid rules especially when their commercial interest is at least partially dependent upon allocation of State's funds. In the light of the above, this paper will attempt to answer the questions when States can be deemed have acted as rational operators in a market economy, by providing remuneration for services offered by intermediaries, and conversely when States' conduct may constitute State aid within the meaning of Article 107 TFEU. Whether the existing legal framework can identify possible impacts on competition and trade resulting from intermediaries' activities.

Keywords: state aid; Market Economy Operator Test; imputability criterion; privatisation of public tasks
DOI: 10.33226/0137-5490.2021.10.5
JEL: K21, K29, K40

This study analyzes the entrepreneur's right to make a mistake under Article 21a of the Act of 6 March 2018. Entrepreneurs Law. It presents the essence and ratio legis of the institution. It discusses its basic structural elements and relevant characteristics constituting the prerequisites for its application, including: temporal and subjective limitations, one-off nature, summons and written statement, deadline for remedying violations and their possible consequences, self-control of the entrepreneur, obligations of the entrepreneur who wants to use the right to make a mistake, the effects of this institution, as well as exclusions from its application. The aim of the study is to answer the question: Is the right to make a mistake an institution that can improve the situation of the entrepreneur and strengthen the guarantees of freedom of economic activity in Poland?

Keywords: entrepreneur; right to make a mistake; Entrepreneurs Law; entrepreneurial activity
DOI: 10.33226/0137-5490.2021.10.6
JEL: K20, K33, K40, K41

Every lawyer knows the Latin maxim Summum ius summa iniuria. You can pass an arbitral award that is consistent with the law but it is unfair. Public policy is a ground for refusal of recognition and enforcement of arbitral awards, which is inter alia distinguished by the Polish Code of Civil Procedure and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The institution of ruling on the basis of the principles of fairness and of equality in arbitration proceedings as well as public policy have fundamental importance for the arbitration proceedings, because of their functions. From many years, in the doctrine and in the practice, a number of doubts about the rules of these institutions have been opened. This article aims to attempt to establish a mutual relationship between these two institutions in arbitration proceedings.

Keywords: public policy clause; commercial arbitration; equity; arbitral tribunal; contract law
DOI: 10.33226/0137-5490.2021.10.7
JEL: K34, H25

in the corporate income tax

This contribution concerns the issue of the distinction of the category of revenues from capital gains on the basis of the Corporate Income Tax Act, which introduced significant changes to the calculation of income and tax loss. The amendment to the Corporate Income Tax Act separated revenues from capital gains from other revenues generated by the taxpayer. The definition of income from capital gains adopts a structure similar to that stated in the provisions of the Accounting Act. Therefore, tax and balance sheet law are similar in this case not only through the content relations constructed by the legislator, but also through the application of the reference provisions. Despite these connections, there are also content inconsistencies in the tax and balance sheet law, consisting in different definitions of terms adopted in various areas of law. The Corporate Income Tax Act explicitly refers to the provisions included in the Accounting Act. The subject of this article is to show the differences and legal effects of the legislative solutions adopted by the legislator. The separation of the revenue from capital gains in the Corporate Income Tax Act indicates that the norms of the balance sheet law may be recognized as forming a tax factual state.

Keywords: the content inconsistency; revenues from capital gains; the corporate income tax; balance sheet law
DOI: 10.33226/0137-5490.2021.10.8
JEL: K22, K23

In the commented judgment, the Provincial Administrative Court considered the differences between the voluntary and compulsory redemption of shares in the share capital of a limited liability company. The Court held that the compulsory redemption of shares was of an ostensible nature in the meaning of Article 83 of the Civil Code in connection with Article 199a § 1 and 2 of the Tax Code, because — according to the Court — the compulsory redemption masked the real transaction, which was the voluntary redemption of shares. This finding is ill-founded, because the actions performed by the parties in the case at hand do not satisfy the prerequisites for the ostensibility required by Article 83, and the allegedly "concealed" voluntary redemption was not performed at all (inter alia due to the lack of an agreement to sell the redeemed shares to the company, which would have been performed in the required form). It is also incorrect to classify the performed redemption as voluntary redemption, inter alia, because there was no "consent" of the shareholder to the redemption in the form specified in Article 199 § 1 of the Commercial Companies Code. The compulsory redemption provided for in the articles of association was carried out in accordance with the actual intentions of the company.

Keywords: redemption of shares; ostensible compulsory redemption; voluntary redemption
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