Journal of Business Law 10/2023

This article aims to present and assess the views of the administrative court doctrine concerning the tax consequences of a share exchange transaction based on personal income tax in the case where a limited liability company under organisation is involved in the exchange. This issue is the subject of numerous judgments with two competing lines of jurisprudence. Primarily, administrative courts differently interpret the legal status of a limited liability company under organisation. Some courts argue that this company may be involved in a share exchange transaction as both a limited liability company under organisation and a limited liability company constitute the same legal entity which is in different constitutional stages (phases), whereas others claim that a limited liability company under organisation is a legal entity with an independent legal capacity, separate from a limited liability company. This means that in certain cases a natural person who is a personal income taxpayer may take advantage of the exemption from the exchange of shares as referred to in Article 24(8a) of the Personal Income Tax Act in a situation where a limited liability company under organisation is involved in the exchange of shares, while in other cases the transaction is not tax neutral for them.

This article aims to answer the question whether, due to currently applicable provisions, it is possible to link the rights of partners in partnerships with a digital token appearing in a distributed ledger technology. Therefore, the article refers to issues such as tokenization of the partner's capital share, the admissibility of the construction of a "virtual partner" determined by a token, and the tokenization of shares in limited joint-stock partnerships. The authors make an argument that the Polish legal system allows tokenization of participation rights in partnerships solely to a limited extent. The said tokenization is possible only in relation to material rights, by means of personal tokenization performed by the partner. Pursuant to the regulations in force, tokenization of investments carried out by the partnership would also be allowed.

The entity establishing a public-use airport should consult with municipalities whose territories are covered by the general plan concerning the area specified in Article 55 para. 6 points 1 and 4 of the Aviation Law. Although this provision appears to be clear, there are doubts in practice regarding the scope of the obligation arising from this provision, particularly whether the consultations should involve the entire general plan or only information from Article 55 para. 6 points 1 and 4 of the Aviation Law. Additionally, doubts arise regarding the form in which the information referred to in Article 55 para. 6 points 1 and 4 of the Aviation Law should be presented to the municipalities. The purpose of this publication is to analyze the provision of the Aviation Law to determine the scope of the subject matter of the obligation to conduct consultations while meeting all formal requirements.

Exceeding the business risk limit is an evaluative premise for incurring liability, the fulfilment of which is treated in jurisprudence as a violation of the law in itself, resulting in incurring liability by a member of the management board. It was established to allow board members to make more courageous (which of course does not mean completely free) decisions. Nevertheless, when analysing the structural elements that define the limits of business risk, one may have doubts whether it is actually a structure constituting a specific countertype of responsibility, or whether it paradoxically leads to the extension of this responsibility. As a consequence, the author proposes to pay attention to the known law construction of actions within the limits of permissible risk, which, as shown in the text, can be successfully applied to the relationship between a management board member and a company, setting the latter a safe area for making decisions and implementing them in the area covered by acting for the benefit of the company. The aim of the article is to show that only the use of the structure of business risk assessment in the activity of a management board member, while referring to the structure of acting within the limits of acceptable risk, allows for a clear delimitation of the board member's responsibility, guaranteeing him proper freedom in making business decisions.

The subject of the gloss is the partially critical assessment of the judgment of the Supreme Administrative Court of 25 January 2023, II OSK 139/20. In the commented judgment, the Supreme Administrative Court assumed that the demolition order cannot be addressed to the investor if the latter would not comply with the decision. In such a situation, this obligation should be borne by the property owner. The above requires a more in-depth commentary (taking into account the factual circumstances of the case) and embedding these considerations in the already existing jurisprudence of administrative courts.