Clearstream Banking¹ informs customers that following the changes to taxation rules brought by the new Tax Law for 2022, new documentation requirements will apply for standard refund applications.

Effective 

1 January 2022

the following standard refund procedure applies to all reclaims on income paid by Polish equities and bonds before and after 1 January 2022.

Impact on customers

In the absence of clear market guidance our local depository City Handlowy (the depository) decided on the documentation requirement it deems appropriate based on the current understanding of the regulations. Clearstream Banking and its depository cannot ensure that the requirements provided below will not change in the future based upon further interpretations to the recently amended regulations or new requirements announced by the tax offices. Additional documentation may also be required from time to time by the Polish Tax Office treating the refund. 

Customers wishing to reclaim tax on behalf of final beneficial owners must provide Clearstream Banking with the following documentation by the prescribed deadlines. 

Procedure for bonds and equities

Eligible beneficial owners

The beneficial owners eligible to standard refund through Clearstream Banking upon receipt of the valid documentation as requested below, are: 
According to the Double Taxations Treaties (DTT):

• Beneficial owners (Legal entities and individuals) qualifying for the benefit of a reduced rate of withholding tax in accordance with a DTT between its country of residence and Poland.
• Banking entities: The DTTs signed by Poland with Austria, Belgium, Czech Republic, Finland, Germany, Ireland, Netherlands, Norway, Qatar and United Kingdom are granting tax exemption from withholding tax to banking entities having their fiscal residency in those countries. There is however a restriction for Belgium whose DTT with Poland states that tax exemption cannot be applied to securities issued in bearer form.
• Central Banks: tax exemption is available if granted by the DTT signed between Poland and the Central Bank’s country of residence. 

According to the domestic law:

• EU/EEA Investment funds: the tax exemption is available to the investment funds that satisfy certain eligibility criteria listed below:
  1. is the beneficial owner of all receivables paid thereto including profits from securities, which have been issued by an entity with the registered office in the Republic of Poland, in particular dividend and interest;
  2. is a collective investment institution with the registered office in EU/EEA country where it is liable to income tax applicable to its entire income regardless of the place of generation;
  3.  a) runs an activity with the only area of business being collective investing of monies obtained via public offering to acquire interest in securities or money market instruments; and
     runs its activity based on the authorisation from the competent financial supervision authority in the country of its registered office
     or
     b) operates as a collective investment institution of a closed-end type or as a specialist open-end investment fund which complies with rules and investment objectives  which are equivalent to rules and objectives applicable to closed-end investment institutions; and
     according to the company’s founding documents, the company’s participation units are not offered in public offering or admitted to regulated public trading or admitted to trading in an alternative trading system, and may be acquired, among others, by individuals provided that such individuals make a single purchase of participation units of value greater than € 40,000
• 1. is subject to direct supervision by the competent financial supervision authority in the country of its registered office;
  2. has a depository institution that maintains its assets;
  3. is managed by entities which run their activity based on the authorisation from the competent financial supervision authority over the financial market in the country of their registered office.
• EU/EEA Pension funds: the tax exemption is available to the pension funds that satisfy certain eligibility criteria listed below:
  1. is the beneficial owner of all profits paid thereto from securities, which have been issued by an entity with the registered office in the Republic of Poland, in particular dividend and interest, and the said profits are associated with the collection of savings for retirement purposes;
  2. is an institution maintaining a pension scheme, having registered office in EU/EEA country where it is subject to income tax applicable to its entire income regardless of the place of generation;
  3. runs an activity with the area of business being only collecting and investing of monies with the purpose of paying them back to the participants of a pension scheme after achieving retirement age;
  4. runs its activity based on the authorisation of competent authority in the country of registered office, and is subject to supervision by competent authority in the country of registered office;
  5. has a depository institution that maintains the register of its assets. 
• EU investors holding, for 24 months continuously, at least in 10% of the share capital distributed by a Polish Issuer (or no less than 25% of shares in the equity of the company being the payer of interest, as per 2003/49/WE), may benefit from tax exemption on the respective income. This exemption is granted by the Polish Act of Corporate Income Tax and is related to implementation into Polish law of EU directive 2003/123/EC. NB: The 24 months required holding period can be before the impacted income payment but also after it. If the investor received income gross but sells the security before the end of the mandatory holding period, he is under the obligation to pay the tax amount to the Polish Tax Authorities.
• Supranational/international organisations: there are no particular Polish regulations granting tax exemption for supranational/international organisations. The eligibility must be requested on a case-by-case basis (for example, ONU agencies or entities such as EBRD and NATO where Poland is a member are exempt from taxation in Poland).  

No service is offered to Polish resident legal entities and individuals. They are recommended to introduce their reclaim directly with the Polish Tax Authorities.

Documentation to provide

The documentation to provide varies depending on the type of beneficial owner

For all beneficial owners

• Letter of Request to Clearstream Banking for Reclaim of Polish Withholding tax.
• A Certificate of Tax Residence (CoTR): to be provided in original by all entities claiming the benefit of the DTT signed between their country of residence and Poland. The COTR must cover the date of the income payment. Electronic CORs are accepted. Please refer to the procedure described under A18103.
• A Power of Attorney (POA) – Omnibus Account, notarial confirmation required, confirming the person signing the POA is authorised to act on behalf of investor. The investor’s name on the POA must be consistent with disclosed data of beneficial owner and the CoTR. A new template was issued to reflect the local regulatory requirements on professional secrecy
• A full chain of credit advices: confirmation of the money transfers related to interest/dividend payments as well as the deduction of tax. It must be provided for each standard refund application by each intermediary between the final beneficial owner and Clearstream Banking. It is recommended to use the Proof of Final Distribution templates provided by Clearstream Banking’s depository to avoid translation delays and costs.
• Additional document, if applicable: in case of any change to the BO’s registered details (name, address, etc.) customers must provide any document confirming the changes. This is necessary to determine the beneficial ownership or entitlement to reduced withholding tax rates or tax exemptions.

In addition, for DTT resident being a legal entity:

• A Declaration – Beneficial ownership: new template of this self-certification to be signed by the final beneficial owner (BO) or its representative under a POA and stating that:
  a)    the applicant is the beneficial owner as well as a taxpayer with respect to the relevant interest/dividend payments,
  b)    the applicant conducts actual business activities in the place of its registered office, which is connected with the income earned in Poland,
  c)    interest/dividends are not received by the applicant’s permanent establishment in Poland and are not effectively connected with a business carried out in Poland by said permanent establishment

In addition, for DTT resident being an eligible bank: 

• Any document supporting the status of the bank: attestation from the regulator confirming that the entity has permission for banking business or notarized copy of the banking licence. It should cover the year of the income payment; 

In addition,  for EU Parent-Subsidiaries

• A Parent-subsidiary declaration:  Self-certification stating that the conditions required to apply exemption on the interest/dividend payments under the EU Parent-Subsidiary Directive are met (only where applicable). Please use the appropriate template for interest or dividend. 

In addition, for EU/EEA pension funds or EU/EEA investment funds

• A Declaration - Beneficial ownership: self-certification to be signed by the final beneficial owner (BO) or its representative under a POA and stating that:
  a)    the applicant is the beneficial owner as well as a taxpayer with respect to the relevant interest/dividend payments,
  b)    the applicant conducts actual business activities in the place of its registered office, which is connected with the income earned in Poland,
  c)    interest/dividends are not received by the applicant’s permanent establishment in Poland and are not effectively connected with a business carried out in Poland by said permanent establishment,
• Any document supporting the status the EU/EEA pension fund or EU/EEA investment fund. Can be Articles of Association, Attestation from regulator (German BAFIN, Luxembourgish CSSF, French AMF etc.), Extract from business register, Trust Deed, Annual Report, Domestic regulations. All documents must clearly refer to and must be issued in the year of payment of the income. 

Supranational/International organisations

The entitlement and certification requirements for Supranational/International organisations may vary and will therefore be treated on a case-by-case basis with Clearstream Banking’s depository.

Translation, notarisation and apostille

Documents provided in a foreign language will be translated in Poland by a sworn translator. The cost will be charged as out of pocket expenses. To limit the cost and delay, it is recommended to use the templates provided by Clearstream Banking’s depository or to provide the documents in English if no Polish version exists. 
The Power of Attorney, Beneficial ownership declaration must be notarised and apostilled. 

How to instruct 

All of the above documents must be provided in original, unless stated otherwise, to the following address regardless if the tax reclaim proceeding is hard copy or electronic: 
Clearstream Operations Prague s.r.o. 
Attn: PTR - Tax Services 
Futurama Business Park Building B 
Sokolovska 662/136b 
CZ-18600 Prague 8 
Czech Republic

Statutory deadline for reclaiming withholding tax

The statutory deadline for reclaiming withholding tax is usually five years after the end of the calendar year in which the dividend payment is made, unless stated otherwise in the DTT signed between Poland and the country of residence of the BO. 

Such exceptions exist in the DTTs signed by Denmark, Germany and the Netherlands. Please refer to A18009 for further information.

Clearstream deadline for standard refund applications

The deadline by which Clearstream Banking must receive the documentation for an application is at the latest four months before the statutory deadline. 

All reclaim applications received after this deadline will be processed by Clearstream Banking on a “best efforts” basis. However, in such cases, Clearstream Banking will apply an extra charge and accepts no responsibility for forms that have not reached the Polish Tax Authorities by the date considered to be the statute of limitations deadline.

With respect to tax reclaims in general, customers are reminded that we accept no responsibility for their acceptance or non-acceptance by the tax authorities of the respective country. It is the customer’s responsibility to determine any entitlement to a refund of tax withheld and to complete the forms required correctly and calculate the amount due.

Further information

All forms can be found on the Clearstream website under Tax Forms to use - Poland.

For further information, please contact the Clearstream Banking Tax Help Desk, Clearstream Banking Client Services or your Relationship Officer.

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1. Clearstream Banking refers collectively to Clearstream Banking S.A., registered office at 42, avenue John F. Kennedy, L-1855 Luxembourg, and registered with the Luxembourg Trade and Companies Register under number B-9248, and Clearstream Banking AG (for Clearstream Banking AG customers using Creation Accounts), registered office at 61, Mergenthalerallee, 65760 Eschborn, Germany and registered in Register B of the Amtsgericht Frankfurt am Main, Germany under number HRB 7500.