Kontrowersje wokół ustalania statusu „beneficial owner” (rzeczywistego właściciela) dla celów poboru podatku u źródła. Wybrane zagadnienia
Controversies Surrounding Determining the Status of Beneficial Owner for the Purposes of Collecting Withholding Tax. Selected Issues

Summary/Abstract: The subject of the study is the analysis of the concept of beneficial ownership in the light of EU law, double taxation conventions and Polish law. This concept has undergone some evolution in the indicated legal systems and the approach to understanding it is not identical in each of them. In the context of conventions, the introduction of the PPT clause with a wide scope of anti-abusive impact has limited the application of the beneficial owner concept to classic cases of depriving this status of agents and intermediaries obliged under a contract or law to transfer payments to someone else. In turn, under EU law, especially after the judgment in the Danish cases, there was a kind of assimilation (fusion) of the EU doctrine of abuse of law with the concept of beneficial ownership. Under the Polish legal system, the concept of beneficial ownership has been given a wide scope to apply to all cases of treaty shopping and directive shopping, even though the clause in Article 22c of the CIT Act already has such a nature. These different approaches make the concept unclear and inconsistent. Therefore, when examining the status of beneficial owner in specific factual situations, great caution and insight should be exercised, especially when identifying conduit companies.

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