What a real estate company is and why the status matters

2026.11.03 Author: Robert Nogacki

A real estate company (spółka nieruchomościowa) is an entity obliged to draw up a balance sheet whose assets consist mainly of real estate located in Poland. It is not a separate legal form but a tax status. A limited liability company, a joint stock company, a partnership, a fund and even a family foundation can hold it. An individual cannot.

The status was introduced on 1 January 2021 in two statutes: Article 4a(35) of the Corporate Income Tax Act of 15 February 1992 (the CIT Act) and Article 5a(49) of the Personal Income Tax Act of 26 July 1991 (the PIT Act). The status does not change the rate of tax on the company’s own income. It changes the company’s duties. The company becomes the withholding agent for the tax on a foreign shareholder’s gain on the sale of its shares. It reports its ownership structure every year. If it is not a Polish or EU taxpayer, it must appoint a fiscal representative. Since 2022 its tax depreciation of buildings and premises is capped at its accounting depreciation.

The legislator’s purpose is simple. A gain on Polish real estate could previously leave Poland untaxed if what was sold was not the building but the shares in the company holding it. The real estate company rules close that route and shift the burden of collecting the tax onto the company itself.

Key points

Definition (Article 4a(35) CIT Act). For an entity starting activity, the test date is the first day of the tax year: at least 50 percent of the market value of its assets consists, directly or indirectly, of real estate in Poland or rights to it, with a market value above PLN 10,000,000. For other entities, the test date is the last day of the preceding year: at least 50 percent of the balance sheet value of assets consists of such real estate, its balance sheet value exceeds PLN 10,000,000, and revenue from real estate and from interests in other real estate companies amounted in the preceding year to at least 60 percent of tax revenue (for non-taxpayers: revenue recognised in the financial result).
Withholding agent (Article 26aa CIT Act, Article 41(4f) PIT Act). Where a foreign shareholder disposes of shares, interests, the totality of partner’s rights, participation titles or similar rights, and the disposal covers at least 5 percent of the voting rights, 5 percent of the right to share in the profit of an entity without legal personality, or 5 percent of the total number of participation titles, the company pays as agent a 19 percent advance on the seller’s gain. The deadline is the 20th day of the month following the month in which the gain arose. The seller must transfer the amount of the advance to the company (Article 26aa(4)).
The agent’s liability is strict. The company cannot escape it by showing that it did not know of the transaction through the seller’s fault (Article 30 § 5a(7) of the Tax Ordinance). The articles of association and the shareholders’ agreement should therefore oblige shareholders to notify the company of a disposal, of the price and of the acquisition costs, and to fund the advance.
Reporting (Article 27(1e) CIT Act, Article 45(3f) PIT Act). By the end of the third month after the end of the year the company files with the Head of the National Revenue Administration information on entities holding in it, directly or indirectly, at least 5 percent of the rights (CIT-N1 for shareholders other than individuals, PIT-N1 for individuals). Those shareholders file their own information (CIT-N2 or PIT-N2). The rules are explained in the Minister of Finance’s general ruling DD5.8203.7.2022 of 23 February 2023.
Fiscal representative (Article 26c CIT Act). A real estate company without a seat or management in Poland appoints a fiscal representative who is jointly liable for the agent’s duties. The duty does not apply to a company subject to tax on its worldwide income in a state of the European Union or the European Economic Area. Failure carries an administrative monetary penalty of up to PLN 1,000,000.
Depreciation (Article 15(6) CIT Act, Article 22(8) PIT Act). Tax depreciation charges on buildings and premises in group 1 of the Classification of Fixed Assets may not in a tax year exceed the accounting charges. Companies measuring investment property at fair value make no accounting charges. The authorities took the view that the cap was then zero. The Supreme Administrative Court rejected that view, but in two different ways: in January 2025 it required tax charges to be compared with hypothetical accounting depreciation, and in April 2025 it held that without accounting charges the cap does not operate at all.
Taxation in Poland. A non-resident’s gain on the disposal of shares in a company at least 50 percent of whose assets consist of real estate in Poland, and on the disposal of shares in a real estate company, is income earned in Poland (Article 3(3)(4) and (4a) CIT Act). The tax is 19 percent. A double tax treaty may restrict that right; the absence of a treaty does not remove it.

Who is a real estate company

Condition	Entity starting activity	Other entities
Test date	first day of the tax year (financial year for non-taxpayers)	last day of the year preceding the tax or financial year
Share of real estate in assets	at least 50 percent of the market value of assets, directly or indirectly	at least 50 percent of the balance sheet value of assets, directly or indirectly
Value of real estate	market value above PLN 10,000,000	balance sheet value above PLN 10,000,000
Share of real estate revenue	not tested	at least 60 percent of tax revenue (or revenue in the net financial result) from lease, sublease, tenancy, leasing and similar contracts, from transfers of real estate or rights to it, and from interests in other real estate companies
Form	a company, partnership, fund, family foundation or other qualifying entity obliged to draw up a balance sheet; not an individual	as opposite

Real estate includes land, buildings, premises, perpetual usufruct and cooperative rights to premises. Indirect holdings are counted through subsidiaries. A holding company owning only shares in real estate companies may therefore itself be a real estate company.

The status is tested every year. A company may enter and leave the regime as its asset or revenue structure changes. A sale of property during the year enters the numerator of the revenue test and often decides the status in the following year.

Balance sheet value means the value in books kept under the Polish Accounting Act or IFRS. Measuring investment property at fair value raises the value of assets and makes exceeding the thresholds more likely. A foreign company that owns Polish property but keeps no books in Poland assesses its status on its financial statements in its home state.

The construction of Article 26aa CIT Act is unusual. The agent is an entity that pays nothing to anyone. The company is not a party to the transaction between shareholders, yet it is liable for the advance on the seller’s gain.

The duty arises where the seller has no seat, management or residence in Poland and the rights disposed of carry at least 5 percent of the voting rights, 5 percent of the right to share in the profit of an entity without legal personality, or 5 percent of the total number of participation titles or similar rights. The threshold is also tested cumulatively for several transactions by the same seller within a period not exceeding 12 months (Article 26aa(2)).

The advance is 19 percent of the gain, the difference between the price and the acquisition costs. The company pays it by the 20th day of the month following the month in which the gain arose. The seller transfers the amount to the company before that date (Article 26aa(4)). Where the company does not know the amount of the transaction, it calculates the advance on the market value of the rights disposed of (Article 26aa(3)). After payment the company gives the seller information on the advance withheld.

For an advance not withheld the company is liable with its whole estate, like any withholding agent (Article 30 § 1 Tax Ordinance). An ordinary agent may argue that the tax was not withheld through the taxpayer’s fault. A real estate company has been expressly denied that defence: Article 30 § 5a(7) Tax Ordinance disapplies the exception in § 5. Lack of knowledge of the transaction, even where the seller caused it, does not protect the company. This shapes the corporate documents. The articles, the shareholders’ agreement and the investment agreement should require notice to the company of a planned disposal, of the price and of the acquisition costs, and the transfer of funds for the advance. Such clauses organise internal relations; they do not alter the company’s public law liability.

Two things must be kept apart. The 5 percent threshold concerns the agent’s duties. It is not an exemption threshold for the seller’s gain. A foreign shareholder selling 3 percent of the shares has no withholding agent in Poland, but the gain may still be taxable in Poland and is then settled by the seller alone.

Whether Polish tax arises at all depends on two layers. The first is domestic law: Article 3(3)(4) and (4a) CIT Act treat gains on shares in a company with real estate assets and in a real estate company as income earned in Poland. The second is the double tax treaty with the seller’s state. Most Polish treaties contain a real estate clause modelled on Article 13(4) of the OECD Model Convention, which allocates the taxing right to the state where the property is located. Some treaties obtained that clause only through Article 9 of the Multilateral Instrument, and a few still lack it and allocate the right to the seller’s state of residence. No treaty means no restriction on Polish tax. Before any transaction the synthesised text of the specific treaty must be checked, together with the date from which the MLI changes apply and the principal purpose test (PPT), which may deny the treaty benefit even where the treaty has no real estate clause. See the entry on double taxation agreements.

A disposal by a Polish shareholder is settled by the shareholder in the annual return. The company is then not an agent.

Reporting the ownership structure

The real estate company files information on the entities holding in it, directly or indirectly, at least 5 percent of the voting rights, 5 percent of the right to share in the profit of an entity without legal personality, or 5 percent of the total number of participation titles, together with the number of rights held. The deadline is the end of the third month after the end of the tax year, 31 March for a calendar year. Information on shareholders other than individuals is filed on form CIT-N1, on individuals on PIT-N1. Each shareholder that is a taxpayer files its own information on the number of rights held directly or indirectly: CIT-N2 or PIT-N2. The filings are electronic, as at the last day of the year; the forms and the logical structure are published by the Ministry of Finance among the CIT forms.

The provisions raised doubts about indirect shareholders, transparent entities and funds. They were resolved by the Minister of Finance’s general ruling DD5.8203.7.2022 of 23 February 2023. The Minister confirmed the 5 percent threshold also for the scope of the company’s own filing, explained who holds rights through transparent entities, and released shareholders exempt under Article 6 CIT Act from the duty.

Failure to file on time is an offence under Article 80 of the Fiscal Penal Code. The data serve the Head of the National Revenue Administration to check whether disposals by non-residents were taxed. They are matched against the register described in our article on beneficial ownership registries.

Depreciation and other effects of the status

Since 1 January 2022 real estate companies may not deduct depreciation charges on buildings and premises in group 1 of the Classification of Fixed Assets in an amount higher than the accounting charges (Article 15(6) CIT Act). The provision was meant as a cap. On its literal wording it excludes tax depreciation in companies that measure investment property at fair value and do not depreciate it for accounting purposes. The Director of National Tax Information read it that way for several years: if the accounting charge is zero, the tax cost is zero.

The Supreme Administrative Court rejected that reading but did not settle on one model. In its judgments of 28 January 2025 (II FSK 788/23, II FSK 789/23, II FSK 987/23, II FSK 1086/23, II FSK 1652/23) it held that Article 15(6) applies also to a company that makes no accounting charges. Such a company should calculate hypothetical depreciation under the accounting rules, as if it measured the building at cost, and that figure sets the ceiling for the tax cost. In a judgment of April 2025 (II FSK 756/23) another panel held that the cap refers only to charges actually made, so without accounting depreciation the limitation does not operate at all. Both lines are more favourable to taxpayers than the authorities’ position, but they differ in effect: the first allows a cost up to the notional charge, the second the full tax charge. Neither judgment guarantees the outcome of an individual case; a company seeking to recover overpaid tax for 2022 to 2025 must choose a model and defend it. Separately, residential buildings and premises have been excluded from tax depreciation altogether since 2023 (Article 16c(2a) CIT Act). The general rules are described in the entry on depreciation and depreciation rates.

The status does not by itself trigger the tax on revenue from buildings (Article 24b CIT Act). That tax is paid by owners of buildings let in whole or in part under a lease, tenancy or similar contract. The base is the sum of the initial values of such buildings less PLN 10,000,000, the rate is 0.035 percent a month, and the tax paid is credited against CIT. A real estate company with no let buildings does not pay it. Property taxes in Poland are described in the entry on property taxation.

The status does not exclude Estonian CIT. Rental income is not in itself passive income under Article 28j(1)(2) CIT Act; the specific items, such as interest, guarantees or transactions with related parties, must be examined. A real estate company may also be a Polish holding company, but the exemption of the gain on the sale of a subsidiary’s shares does not cover companies at least 50 percent of whose assets consist of real estate in Poland (Article 24o(3) CIT Act). See the entries on the holding company in international tax law and the participation exemption.

What to check in a company holding real estate

The status. For an entity starting activity: the market value of assets on the first day of the year. For others: the balance sheet value on the last day of the preceding year and the share of revenue from real estate and from interests in other real estate companies in the preceding year. Repeat the test every year, also after a sale of property.
Indirect holdings. Holding companies, funds and family foundations with shares in real estate companies may themselves be real estate companies.
The calendar. CIT-N1, PIT-N1, CIT-N2 and PIT-N2 by the end of the third month after the year. The agent’s advance by the 20th day of the month after the month the gain arose. A fiscal representative before the first transaction.
Corporate documents. A duty to notify the company of a disposal by a non-resident, of the price and of the acquisition costs, and to transfer the amount of the advance; contractual sanctions for breach.
The treaty with the seller’s state. The real estate clause, the MLI changes and their dates of application, the 365-day reference period, the principal purpose test.
The valuation model (historical cost or fair value), the relationship between accounting and tax charges, the choice between the “hypothetical depreciation” line and the “no cap” line, a ruling application or a correction and overpayment claim.
The fiscal representative. For a company not subject to worldwide taxation in an EU or EEA state: the agreement with the representative, joint liability, the administrative penalty of up to PLN 1,000,000.

Counterparts in other jurisdictions

The real estate clause of Article 13(4) of the OECD Model Convention allows the state where the property is located to tax gains on the disposal of shares in companies whose assets consist in more than 50 percent of real estate. The MLI added a 365-day reference period. Most states collect that tax from the seller. The United States, under FIRPTA, places the withholding duty on the buyer, who generally withholds 15 percent of the price when acquiring from a non-resident shares in a real property holding corporation. The Polish solution, in which the agent is the company itself rather than a party to the transaction, is among the less common ones. An annual duty to report the ownership structure to the tax authority, separate from the beneficial ownership register, likewise has few counterparts.

Frequently asked questions

When is a company a real estate company in Poland?

Where at least 50 percent of the value of its assets consists, directly or indirectly, of real estate in Poland worth more than PLN 10,000,000. For entities other than those starting activity, at least 60 percent of the preceding year’s revenue must additionally come from lease, tenancy, leasing, disposals of real estate or interests in other real estate companies (Article 4a(35) CIT Act).

What duties does a real estate company have?

It pays as withholding agent a 19 percent advance on a non-resident’s gain on the disposal of at least 5 percent of its shares (Article 26aa CIT Act). It files by the end of the third month after the year information on shareholders holding at least 5 percent of the rights (CIT-N1 or PIT-N1). It appoints a fiscal representative if it is not subject to worldwide taxation in Poland, the EU or the EEA (Article 26c). It caps its tax depreciation of buildings at the accounting charges (Article 15(6)).

Who files CIT-N1 and who files CIT-N2?

CIT-N1 and PIT-N1 are filed by the real estate company about its shareholders holding at least 5 percent of the rights. CIT-N2 or PIT-N2 is filed by each such shareholder about the number of rights held directly or indirectly. The deadline for all of them is the end of the third month after the end of the company’s tax year.

Is the sale of shares in a Polish real estate company by a foreign shareholder taxed in Poland?

As a rule yes, at 19 percent (Article 3(3)(4) and (4a) CIT Act). The double tax treaty with the seller’s state may exclude that right if it contains no real estate clause. On a disposal of at least 5 percent of the rights the advance is withheld by the company itself as agent (Article 26aa).

Can a real estate company depreciate its buildings?

Yes, up to the accounting charges (Article 15(6) CIT Act). Where property is measured at fair value, the authorities refused the cost entirely. The Supreme Administrative Court in January 2025 required a comparison with hypothetical accounting depreciation, and in April 2025 held that without accounting charges the cap does not operate. Residential buildings and premises have not been depreciable for tax since 2023.

What is the penalty for failing to appoint a fiscal representative?

An administrative monetary penalty of up to PLN 1,000,000 imposed by decision of the head of the tax office (Article 26c CIT Act). The duty applies to real estate companies without a seat or management in Poland, except companies subject to worldwide taxation in an EU or EEA state.

Most disputes about real estate companies begin not at the tax office but at the negotiating table: in a share purchase agreement in which nobody provided for who pays the advance and who notifies the company. Skarbiec Law Firm advises on such transactions, on structure reporting and in depreciation disputes, and on holding structures with Polish real estate as part of its strategic consulting and tax opinions.

Legal status as of 2 November 2026.

Robert Nogacki

Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.

The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.

Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.

He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.

Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.

Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.

He believes that the best legal advice is the kind that means the client never has to appear in court.