Poland: Maintenance Services Concerning Machinery Manufactured In A Special Economic Zone, Provided Outside The Zone, Should Be Considered Activity Within The Zone

Ruling description

The Supreme Administrative Court in Warsaw in its judgment of August 27, 2015 (case no. II FSK 541/14) resolved that revenues obtained by a company from its maintenance services involving the repair of machinery outside the area of a Special Economic Zone (SEZ) should be exempted from income tax, and hence should be considered revenues from activities within the SEZ.

The case concerned a company holding a permit for operations within a SEZ, including the manufacture of machinery and its maintenance. Some of the maintenance services are provided by the company outside the zone due to the features, size or complex construction of machines or the impossibility to disassemble a machine for the time of its repair. Therefore, the company applied for clarification whether the revenues it achieved from the services involving the repair of machines manufactured within SEZ at the client's, i.e. outside the zone, are CIT exempted.

In its judgment the Supreme Administrative Court pointed out that the fact of holding a permit for carrying on activities within the SEZ is a key factor to determine if a given activity may be classified as an activity within the zone. The court stated that in light of the factual background of the case, one of the elements of a permit for activities within a SEZ are services of maintaining machines manufactured by a company within a SEZ zone. The permit is a comprehensive act, which determines in a final and exclusive manner what should be considered activity within the SEZ. As a result, the Supreme Administrative Court considered that in a situation where this activity must be performed outside the zone due to the complex construction or size of the machinery concerned and the permit covers maintenance services, such services performed outside the zone are also covered by the permit.

Comment

The discussed judgment complies with the recent tendency to relax fiscal policy towards entrepreneurs operating in special economic zones. For example, in one of its recent judgments the Supreme Administrative Court resolved that the sale of a product leased outside a SEZ and situated outside it at the time of the sale should also be considered an activity performed within the SEZ. This confirms the thesis that in cases connected with special economic zones, courts more frequently attempt to adjudicate in accordance with life experience and common sense and take into consideration the special nature of activities within the zone. The said tendencies of the judicial practice are positive because practice shows that sometimes activities within a SEZ cannot be limited to the area of the zone.

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