On 4 September 2018, the regulation on the state aid to be granted to some entrepreneurs for the implementation of new investments came into being. This supplemented the act on supporting new investments with qualitative and quantitative criteria for granting state aid.
The act on supporting new investments has not yet replaced the act on special economic zones, but it amends and supplements it. The new act redresses the currently existing system of economic zones, abandoning the costly and time-consuming procedure for modifying their borders. The state aid based on the new act will be still provided in the form of exemption from corporate or personal income tax.
A quantitative criterion is the amount of eligible costs of a new investment. Herein, the legislator determines support on the basis of the minimum amount of the eligible investment costs incurred by the investor. This amount is determined based on the unemployment rate in the county in which a new investment is to be implemented.
For example, if the unemployment rate in a given county is equal to or lower than 60% of the average unemployment rate in the entirety of the country, the entrepreneur must undertake to pay eligible costs of a new investment to the amount of at least PLN 100 million. However, there are counties where the unemployment rate is higher than 250% of the average national unemployment rate, as well as some in which the contained medium cities (and municipalities bordering such a city) are losing socio-economic functions (the list of which is attached to the regulation). In such places, investments must include eligible costs of an amount of at least PLN 10 million. Between these two thresholds, there are several indirect thresholds.
It should be added here that the minimum amount of eligible costs provided above is reduced by:
- 95% in case of investments in the field of modern business services, including, among others, the IT industry, research and development industries, auditing, accounting and book-keeping services, as well as call centres, and research and development activities;
- 98% for the activity carried out by micro-entrepreneurs;
- 95% for the activity carried out by small-size entrepreneurs;
- 80% in case of investments for business activity carried out by medium-size entrepreneurs.
This means, for example, that for the medium-size entrepreneur, the amount thresholds of the minimum incurred eligible costs are, in fact, from PLN 2 to 20 million. However, for investments in the modern service sector, these thresholds range from PLN 0.5 to 5 million - even when the investor is a significant and major entrepreneur.
The decision on support can be issued for a period from 10 to 15 years, depending on the allowable intensity of state aid for the area in which the investment is to be implemented - as determined on the basis of a regional aid map. This means that the decisions on support will be issued for the following periods:
- 10 years for investments located in the areas of: Lower Silesian Province, Wielkopolska Province and Silesia Province or the capital city of Warsaw and Warsaw western sub-region;
- 12 years for investments located in the areas of: Kujawy-Pomerania Province, Lubusz Province, Łódź Province, Małopolska Province, Opole Province, Pomerania Province, Świętokrzyskie Province and West Pomerania Province and in the areas belonging to the sub-regions: Ciechanów and Płock, Ostrołęka and Siedlce, Radom and East Warsaw;
- 15 years for investments located in the areas of: Lublin Province, Podkarpackie Province, Podlasie Province, Warmia-Mazury Province and also in the area of a special economic zone.
The support granted under the new act will take longer to come into being than the support for investors in the economic zones because the support based on the act on special economic zones will be completed with the end of validity of the act on current special economic zone (2026). However, the currently existing economic zones may still remain attractive for investors owing to the long duration of the decision on support.
The second type of criteria that must be met by the investment in order to obtain approval, includes qualitative criteria. Any investment can receive a maximum of 10 points within two criteria: sustainable economic and social development. The legislator has provided different ways to meet these for the investments implemented in the services and industrial sectors.
Basically, a minimum of 6 points, including at least one point in each of the criteria, are considered as meeting the qualitative criteria. Depending on the investment location, the limit of points needed to obtain approval may be lower. For example, in the regions for which the decisions on investment support is for 12 years, it is important to obtain at least 5 points, whereas, in the provinces for which 15 years of support is offered, it is sufficient to achieve 4 points.
In addition, the investment may obtain one point in the sustainable social development category for being located in a city or bordering municipality losing socio-economic, or in a county area in which the unemployment rate is at least 160% of the national average unemployment rate. Herein, cities in which the seats of the governor or regional assembly are located, are excluded.
Additional anti-optimisation clauses
By amending the acts on income taxes, the legislator also added a special clause on tax avoidance applicable to those benefiting from the decision on support or zone authorisation. Taxpayers who take action primarily in order to obtain income tax exemption through unreal activities or activities, the main or one of the main objectives of which is tax avoidance or evasion, even if the taxpayer has taken the action in a field of business activity not covered by the exemption (optimization), will be penalized and will lose the right to exemption on the day of the first questioned activity.
Compared to the act on special economic zones, the new regulation provides entrepreneurs with greater flexibility in locating investments. Furthermore, the legislator encourages investment even small investment) in counties with higher unemployment. What is more, the requirement to meet the quality criteria results in a situation wherein investors will have to reckon with the necessity to incur additional expenditure and become responsible for additional obligations in order to obtain enough points. The support obtainment is also associated with a certain tax risk in the form of the anti-optimisation clause.