Where will the sale of shares in a Polish limited liability company by a Spanish resident individual (who is a Spanish resident) be taxed?

Such sales will be taxed in Spain. This rule applies not only to Spanish citizens but also to Polish citizens who declare that they have a permanent residence in Spain.

According to Article 3(2a) of the Personal Income Tax (PIT) Law, individuals, if they do not have a place of residence in the territory of Poland, are subject to tax liability only on income (revenues) earned in our country (this is known as limited tax liability). An exemplary catalog of income (revenue) that is earned by a foreign non-resident is subject to PIT in Poland can be found in Article 3, paragraph 2b. Income from the sale of shares in a Polish limited liability company is not included there.

While this catalog is open, the rule is that only those incomes whose source is permanently connected with Poland are taxed in Poland. Income from the disposal of shares is derived from a source that has no permanent connection to Poland. This position follows from a letter from the Ministry of Finance dated July 24, 2001 (PB/AK-8214-1045-277/01). The Ministry stated that the income of non-residents from the disposal of "rights to sources of income" (e.g., shares, bonds and other securities issued by Polish entities, receivables of Polish entities) is not income derived from sources of income located in Poland, as it constitutes a source of income separate from the disposed right, which is not permanently connected with the territory of Poland. Therefore, the provisions of the PIT Law do not provide for taxation of income from the sale of shares in a Polish limited liability company by a non-resident.

The Tax Chamber in Warsaw also commented on the taxation of such income in an interpretation dated December 12, 2008 (IPPB2/415-1352/08-4/MK). It stated that a disposal taking the form of a sale or contribution-in-kind is taxed in Poland only if the sale of shares takes place on the Polish stock exchange, or if the disposal of shares leads in practice to a transfer of rights to real estate. In other cases, however, such income will not be taxed in Poland.

It is also worth looking into the provisions of the Polish-Spanish double taxation treaty. The rules for the taxation of income from the sale of shares are regulated in its Article 13(3). According to it, gains from the transfer of title to property not listed in paragraphs 1 or 2 will be taxed only in the country in which the transferor of title is resident or established (in this case, Spain). According to paragraphs 1 and 2 of Article 13 of the agreement, gains from the sale of real estate located in Poland, gains from the sale of shares in a company whose assets consist mainly of real estate, and gains from the sale of movable assets of an establishment are taxable in Poland. The provisions of paragraphs 1 and 2 do not mention income from the sale of shares in a company whose assets do not consist mainly of real estate. Therefore, the income of a Spanish resident from the sale of shares in a Polish limited liability company will be taxed only in Spain.