Introduction

On 9 July 2025, the Polish Ministry of Finance published binding tax clarifications (Objaśnienia podatkowe) on the application of the “beneficial owner” (BO, Polish: rzeczywisty właściciel) clause to withholding tax (WHT) relief. Issued under Article 14a §1 pt 2 of the Tax Ordinance, the guidance carries protective legal effect similar to an individual tax ruling when applied in good faith. These explanations, finalized after a public consultation process that began in September 2023, mark the first authoritative statement of Poland’s BO doctrine.

The clarifications are relevant not only for multinational companies but also for institutional investors—such as asset managers, pension funds, insurance groups, and collective investment vehicles—receiving Polish-source income in cross-border structures.

 The Three Legal Conditions for Beneficial Ownership

To qualify as the beneficial owner of a payment for purposes of Polish WHT relief, the recipient must satisfy all three statutory conditions:

1. Receives the payment for its own benefit: The recipient must enjoy and economically control the income.

2. No obligation to pass the payment on: The recipient must not be legally or factually required to transfer all or part of the income to another entity.

3. Conducts genuine business activity: The recipient must carry out substantive economic activity in its state of residence using its own (or qualifying group) resources.

The first two conditions are to be evaluated together in determining economic control. Indicators of a failure to meet this threshold include thin pass-through margins, rapid onward transfers, and lack of commercial or credit risk borne by the recipient.

Scope of Application: Passive Income Only

The BO condition applies only to passive income, such as:

1.  Dividends

2.  Interest

3.  Royalties

Look-Through Relief and the “Extended Subjective BO Test”

Where the direct recipient of a payment fails the BO test, the guidance permits WHT relief to be applied to the next entity in the chain—but only if:

1. The subsequent payment is of the same legal nature (e.g. interest to interest),

2. The structure is not artificial, and

3. The payer knows at the time of payment that the funds will be passed on to the next entity.

Where these conditions are not met, only a burdensome “extended subjective BO test” remains. This test evaluates whether the direct recipient would qualify as BO if all intermediary economic attributes and activities were attributed to it. In practice, applying this test will require robust internal analysis and supporting evidence.

Substance Sharing Within Groups: EU and Treaty Relief

The Ministry allows certain shared resources—such as infrastructure or personnel from related entities—to count toward the genuine activity test in two cases:

For EU directive relief, resources from other EU-based group entities may be considered.

For treaty-based relief, only resources from the same jurisdiction as the payment recipient are relevant.

This flexibility may assist holding structures and investment platforms operated by institutional investors, particularly those relying on group-wide service models or asset pooling arrangements.

Due Diligence and Technical Payers

Payers must perform enhanced verification when paying related parties. Certificates and declarations alone are insufficient. However, for unrelated parties, a more streamlined process may apply.

The guidance also provides simplified documentation rules for “technical payers” (e.g. custodians or financial intermediaries) and collective rights management organizations, reflecting their unique roles in securities and IP payment flows.

Legal Protection and Continued GAAR Exposure

Taxpayers and payers who apply the July 2025 guidance in good faith are shielded from additional WHT, default interest, and fiscal-penal sanctions on post-publication events—even if the tax authority or courts later adopt a different interpretation.

However, the general anti-avoidance rule (GAAR) and other anti-abuse doctrines remain fully applicable. Therefore, contemporaneous documentation, clear commercial rationale, and transparent governance remain critical to managing risk.

Conclusion and Key Takeaways

The July 2025 BO guidance imposes a demanding substance-and-control standard for WHT relief. Both institutional investors and multinational groups should:

Review their cross-border holding and financing structures, particularly where Polish-source income is involved,

Re-assess internal documentation and due diligence procedures, and

Prepare for increased scrutiny, especially in fund, securitization, or IP structures.

The guidance provides a valuable safe harbor, but only for those who can substantiate beneficial ownership on a transaction-by-transaction basis.

Disclaimer: This newsletter is for general information only. It does not constitute legal or tax advice. Readers should consult with qualified advisors to assess the application of this guidance to their specific facts and structures.