The Companies Act of 15th September 2000 regulates the creation, organization and functioning of commercial partnerships and companies. Commercial partnerships include: a registered partnership (spółka jawna), a professional partnership (spółka partnerska), a limited partnership (spółka komandytowa) and a limited joint-stock partnership (spółka komandytowo – akcyjna), whereas companies include: a limited liability company (spółka z ograniczoną odpowiedzialnością) and a joint-stock company (spółka akcyjna).
Commercial partnerships and companies, with exception of companies in organization, can start business activities only upon registration in the register of entrepreneurs held in the National Court Register.
Commercial partnerships
Commercial partnerships i.e. a registered partnership(spółka jawna), a professional partnership(spółka partnerska), a limited partnership (spółka komandytowa) and a limited joint-stock partnership (spółka komandytowo – akcyjna) are not legal persons, however, may acquire rights in its own name, including the right of ownership of real estate and other rights in rem, incur obligations, sue and be sued.
The existence and operation of partnerships are based on their partners; the membership of partnerships is stable. The rights and obligations of a partner in a partnership may be transferred to another person only after the consent of all of the remaining partners. In such a case the withdrawing partner and the acceding partner are jointly and severally liable for the obligations of the withdrawing partner arising in connection with his membership in the partnership and for the obligations of the partnership.
As a rule, management of the affairs of the partnership may not be entrusted to third parties to the exclusion of the partners. Each partner has the right and obligation to manage the affairs of the partnership and is personally liable together with other partners and with the partnership for the debts of the partnership. However, the liability of the partners is subsidiary to the liability of the partnership – the creditor of the partnership may conduct execution from the partner’s assets only where execution from the assets of the partnership proves ineffective.
Under the Accounting Act of 29th September 1994, the obligation to keep accounting books and to prepare financial statements on their basis applies to the following partnerships: limited partnership, limited joint-stock partnership, and registered partnership whose partner is a legal person, as well as registered partnerships of natural persons and professional partnerships, if their net revenue from the sales of goods, products, and financial transactions for the preceding financial year amounted to the Polish currency equivalent of at least EUR 1200000.
The obligation to have their annual financial statements audited by certified auditors and published applies to partnerships keeping full accounting in compliance with the Act which, in the financial year preceding the year for which the financial statements are prepared, fulfilled at least two of the following conditions: a) average annual full-time employment reached at least 50 persons, b) total balance-sheet assets at the end of the year amounted to Polish currency equivalent of at least EUR 2000000, c) net revenue from sales the sales of goods, products, and financial transactions for the preceding financial year amounted to the Polish currency equivalent of at least EUR 4000000.
If a partnership is not obligated to keep books of account under the Accounting Act of 29 September 1994, a financial report should be drawn up on the basis of the entries in the tax book of receipts and expenses and other registers kept by the partnership for tax purposes, to physical stock-taking, and to other documents which allow such a report to be drawn up.
The income tax payers in a partnership are its partners and not the partnership itself. Subject to income tax is a partner’s share in profit.
Companies
As opposed to partnerships, companies, i.e. a limited liability company and a joint-stock company, have legal personality and their activity, as a rule, is based not on the members but on the company capital. This means that the membership in such companies is variable, and personal characteristics of the individual shareholders are of no significance to the company’s activity. The shareholders manage the company’s affairs indirectly, through elected governing bodies and are liable only to the value of their shares held.
Upon conclusion of the articles of association, a company in organization is created. The company in organization may acquire rights in its own name, including the right of ownership of real estate and other rights in rem, incur obligations, sue and be sued. Upon registration in the register of entrepreneurs held in the National Court Register a company in organization acquires legal personality and becomes a party to the rights and obligations of the company in organization.
Under the Accounting Act of 29 September 1994, the obligation to keep accounting books and to prepare financial statements applies to all companies, including those in organization. The obligation to have their annual financial statements audited by certified auditors and published applies to limited liability companies which, in the financial year preceding the year for which the financial statements are prepared, fulfilled at least two of the following conditions: a) average annual full-time employment reached at least 50 persons, b) total balance-sheet assets at the end of the year amounted to Polish currency equivalent of at least EUR 2 500 000, c) net revenue from sales the sales of goods, products, and financial transactions for the preceding financial year amounted to the Polish currency equivalent of at least EUR 5 000 000.
The income tax payers in capital companies are both the company and its shareholders. Subject to tax are the company’s profit and a dividend paid to its shareholders.
