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Journal of Business Law 11/2021

ISBN: 0137-5490
Pages: 65
Publication date: 2021
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2021.11.1
JEL: K22, K33, K34

The subject-matter of the article is presentation of the phenomenon of international tax competition which is related to the developing tax policies of countries. It is particularly important to distinguish the phenomenon under discussion from harmful tax competition. In the course of elaboration, it is necessary to mention tax havens that exert a substantial influence both on international and harmful tax competition. Holding companies also influence international tax competition as they adopt numerous tax engineering instruments within the framework of their tax strategies. The present article indicates the most important as well as the most up-to-date ones. The elaboration also presents how the relations and links that are being shaped between countries that are tax havens (though not only) and international holding companies impact international tax competition.

Keywords: tax competition; tax optimisation; tax havens; holding
DOI: 10.33226/0137-5490.2021.11.2
JEL: K15, K20

The aim of this article is to look at the new type of foundation introduced into the Polish legal system in the form of a family foundation not only from the perspective of the advantages of this organizational and legal form raised by the Project Initiator, but also the threats perceived in the German doctrine that it may entail. These threats can be defined collectively as the "dark side" of the family foundation. The article omits the assessment of this new legal institution from the tax law perspective, focusing mainly on its private-law aspects.

Keywords: family foundation; private foundation; enterprise succession; entrepreneur succession; business activity; inheritance law; rule of the "dead hand"; private law
DOI: 10.33226/0137-5490.2021.11.3
JEL: K32, H77, H81, Q42

The amendment to the provisions of the Act on supporting thermomodernisation and renovations made on April 12, 2020 significantly extends the scope of application of the thermomodernisation bonus, which is an instrument to support investments resulting in a reduction in thermal energy demand in residential buildings. The most important changes to the legislation consist in resigning from some of the existing restrictions on the amount of the bonus, introducing the possibility of increasing the bonus for the installation of renewable energy micro-installations in buildings and additional financial support for works performed in the external walls of large-panel buildings. The study includes a detailed analysis of legal regulations and their assessment relating to the needs as well as legal and financial consequences of granting thermomodernisation bonuses in the changed legal standing. It has been shown that the thermomodernisation bonus plays a special role in promoting pro-ecological investments, and its legal status is determined by the close relations with bank loans granted for the implementation of thermomodernisation projects, the source of financing the bonus from the Thermomodernisation and Renovation Fund supplied from the state budget and the goals of thermomodernisation investments aimed at reducing the demand for energy produced from traditional sources with a negative impact on the natural environment. It was found that the thermomodernisation bonus can be an important instrument to motivate owners and managers of residential buildings, local heating networks and local heat sources to take pro-ecological actions.

Keywords: thermal energy; investment and thermomodernisation bonus; bank loan; residential buildings
DOI: 10.33226/0137-5490.2021.11.4
JEL: K34, K14

In Poland, for many years, administrative courts have adjudicated, among others, in tax cases using the in dubio pro tributario principle (the principle of the benefit of the doubt). This principle was not expressis verbis stated in the Polish legal norms. As of 1 January 2016, the legislator introduced in Article 2a of the Tax Ordinance a regulation that "doubts about the content of the tax law that cannot be removed shall be resolved in favour of the taxpayer". Since this rule became binding, questions have appeared as to how such a rule, formulated in this way, should be applied by tax and fiscal control authorities. The aim of this article is to discuss the application of this rule in practice, referring to the decisions of courts. The Author formulates conclusions resulting from the caselaw of courts and indicates at the same time the need to make changes to the provision of Article 2a of the Tax Ordinance. Therefore, de lege ferenda, he suggests changing the provision of Art. 2a of the Tax Ordinance as soon as possible and proposes a broader phrase that "all persons in any way obliged to bear tax burden shall have the right to resolve doubts in their favour".

Keywords: principle in dubio pro tributario; taxation; tax authorities; administrative courts
DOI: 10.33226/0137-5490.2021.11.5
JEL: K34, K14

Conclusion of insurance contract with the use of direct long distance means of communication creates problems referring the delivery of insurance policy and general terms of insurance as well as consistency of the contract with the insurance customer's demands and needs. The article aims to answer the question regarding the form of the documents accompanying conclusion of the insurance contract on distance, how the precontractual obligations of the parties should be fulfilled and when the contract is actually concluded. Most of the problems referring the insurance documents were solved by the sec. 43 of the Act of 2015 on Insurance and Reinsurance Activity which enables to create documents connected with the conclusion and performance of the insurance contract in electronic form and mechanical printing of the insurers' signature. Non consistency of the insurance contract with the consumers' demands and needs is countervailed by the Act of 2017 on Insurance Distribution. With this are connected information duties towards the customer concluding the insurance contract on distance. As a general rule information shall be provided to the customer on durable medium. According the author the above notion should also refer to the delivery of the insurance policy and general terms of insurance.

Keywords: insurance contract; contract conslusion; distance contracts; insurance distribution; insurance policy
DOI: 10.33226/0137-5490.2021.11.6
JEL: K12, K29, K40

Efficient and effective public procurement is an integral element of economy and a possibility to reach a broad range of contractors offering high quality products and services. The aim of this article is to discuss selected new legal solutions introduced by new Public Procurement Law, which application may increase the efficiency of public contracts. The article intends to answer the question whether statutory principle of efficiency will enhance the quality of public procurement, making Polish public contract market more competitive. The main research method is a dogmatic-legal method. The analysis conducted in the article indicated that the provisions of Public Procurement Law applicable from 1st January 2021 introduce new legal solutions being an incentive for contractors to participate in public contracts. The consequence of such solutions should be an increase in the number of tenders, giving the ordering parties a bigger chance to obtain maximum efficiency of the implemented contracts and making public procurement market more competitive.

Keywords: efficiency; competitiveness; public expenditure; public procurement
DOI: 10.33226/0137-5490.2021.11.7
JEL: K39

The issue of sale of agricultural properties in tender procedures on the basis of legislation regulating the principles of real estate management is associated with a number of interpretation problems. These arise from the fact that the legislator has failed to distinguish clearly between these regulations and the legislation on shaping of the agricultural system. This issue has not been subjected to a thorough analysis in legal texts so far. Sale of agricultural properties should, in such case, take place on the basis of an open tender, with potential modifications justified by the specific nature of statutory requirements with regard to consent to the purchase of agricultural property, issued by the Managing Director of the KOWR (National Support Centre for Agriculture). There is no basis to state that under the current state of law, it is not possible to sell agricultural properties on the basis of the act on real estate management in the course of a tender procedure, or that in such case, a restricted tender procedure must be carried out, allowing only for participation of individual farmers.

Keywords: agricultural property; open tender; agricultural system; Managing Director of the National Support Centre for Agriculture; consent to the purchase of real estate
DOI: 10.33226/0137-5490.2021.11.8
JEL: K22, K29

The commented ruling of the ECJ has practical implications for the public procurement market in the Member States. The ECJ examined whether in the situation when grounds for exclusion arise in relation to a subcontractor, the contracting authority may exclude from the procedure the contractor who indicated the subcontractor in its tender. The aim of the article is to show the correct procedure of the contracting authority in a situation where the grounds for exclusion concern subcontractors. The ECJ confirmed the compliance with EU law of national regulations providing for the possibility of examining exclusion criteria also in relation to subcontractors. However, according to the principle of proportionality, the contracting authority must be able to assess whether the economic operator is able to perform the contract without the subcontractor's participation before the exclusion of the economic operator. Thus, the ECJ ruled that national legislation providing for the automatic character of such exclusion are incompatible with EU law.

Keywords: judgment of the ECJ; exclusion from the proceedings; Directive 2014/24; public procurement; automatic exclusion
DOI: 10.33226/0137-5490.2021.11.9
JEL: K12, K15, K22

The judgment of the Supreme Court dated 23 June, 2020 (V CSK 521/18) is of substantial importance for limited liability companies with a supervisory board, as well as for entities that are considering establishing a limited liability company with a supervisory board. The ruling referred to in the commentary indicates that it is possible to delegate a supervisory board member to the management board of a limited liability company and at the same time it indicates the framework in which such a structure must be construed in order to comply with the nature of the relationship between a limited liability company and its shareholder. The judgement covered by the commentary deserves to be approved and acknowledged. This article is aiming to serve as input to the debate on the right to delegate a supervisory board member to the management board of a limited liability company and on the terms of implementing thereof.

Keywords: supervisory board; management board; limited liability company; delegating a supervisory board member to the management board of a limited liability company; structure of the provisions of the company articles of association with regard to delegation procedure
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