Share capital increase and tax schemes – new general interpretation

Magdalena Kopacz

Share capital increase and tax schemes – new general interpretation

On 29 July 2025, the Minister of Finance and Economy (hereinafter – MFiG) issued general interpretation No. DTS5.8092.3.2025 concerning the classification of share capital increases in companies in the context of tax scheme reporting obligations (MDR) under the Civil Law Transactions Tax Act.

What follows from the ruling

The published ruling clarifies some of the existing doubts and indicates that an increase in share capital alone – even if part of the contribution is not subject to PCC because it was transferred to reserve capital – does not, in principle, constitute a tax scheme.

Whether the MDR reporting obligation arises will be determined primarily by the motives of the shareholders of the capital company and the circumstances of the specific case. Unsurprisingly, the criterion of the main benefit, which must be examined in each case, continues to be of key importance.

So when does the MDR reporting obligation not arise?

The interpretation emphasises that the obligation to report a tax scheme does not arise when the capital increase has a real economic justification – for example, it serves to recapitalise the company, implement an investment agreement or adapt the financing structure to the needs of the business. Therefore, when the absence of the obligation to pay PCC results directly from the applicable regulations, the agreement will not constitute a tax scheme.

However, the situation will be different if the shareholders of a capital company consciously decide to increase the capital only by part of the value of the contribution made, and allocate the remaining funds to the reserve capital solely in order to reduce the PCC tax base. In such a case, there is a risk that the main reason for the action was a tax advantage. Then, the main benefit criterion may be considered to have been met, and thus the MDR reporting obligation will arise.

Importantly, the ruling also emphasised that the reporting obligation does not arise automatically when the documentation is standardised (e.g. notarised resolutions of shareholders), but only if the motive for the actions is to obtain a tax benefit.

What does this mean in practice?

The latest interpretation limits the cases in which an increase in share capital will be considered a tax scheme. This is important information for capital companies, which now have greater certainty that not every capital increase requires the reporting of a tax scheme. However, each transaction will require a thorough analysis and reliable documentation of its economic objectives. This is because the tax authorities may examine not only the resolution or notarial deed itself, but also the entire context of the transaction, including its impact on the taxpayer’s tax situation.

In practice, this may mean that internal MDR procedures will need to be reviewed and possibly updated. It is worth ensuring that there is adequate business justification for each capital increase, because although the interpretation provides a certain degree of protection, differences in assessment between the entrepreneur and the tax authorities may lead to disputes. Transparency and good documentation of the economic purpose will now be even more important than before.

Full text of the general interpretation: Link