Disposal of an organised part of an enterprise – what does it involve, what are the tax risks and how can they be secured?

Organised part of an enterprise

Tax regulations define an organised part of an enterprise [hereinafter: OPE] as a set of assets – tangible and intangible, including liabilities – organisationally and financially separated within an existing enterprise, intended to perform specific business tasks, which could also constitute an independent enterprise performing these tasks on its own.

The existence of an organised part of an enterprise is therefore conditional upon the simultaneous fulfilment of the following conditions, namely:

• there is a set of assets – tangible and intangible, including liabilities;
• this set is organisationally and financially separate within the existing enterprise;
• the individual components are intended to perform specific economic tasks;
• the set of these components could constitute an independent enterprise performing the above-mentioned economic tasks on its own.

The complex definition of an organised part of an enterprise raises a number of practical problems and doubts among taxpayers, which in turn affects the level of tax risk for transactions involving the disposal of an organised part of an enterprise. The disposal of an organised part of an enterprise (transfer) should be understood broadly and may result from various types of transactions, including, among others:

• sales agreements;
• donation agreements;
• contributions;
• division by spin-off.

Tax aspects of an organised part of an enterprise

Issues related to the disposal of an organised part of an enterprise (transfer) most often concern tax consequences in the area of goods and services tax [hereinafter: VAT] and civil law transaction tax [hereinafter: TCLT].

1) VAT

Pursuant to Article 6(1) of the VAT Act, the provisions do not apply to transactions involving the sale of an enterprise or an organised part of an enterprise.

Therefore, the sale of an organised part of an enterprise will not be subject to VAT. The tax authorities consistently confirm that the disposal of a set of tangible and intangible assets constituting an organised part of an enterprise is not subject to VAT (see, for example, the tax ruling of 10 January 2025, Director of National Tax Information, ref. no. 0113-KDIPT1-2.4012.842.2024.2.AM).

However, if the subject of the transaction does not constitute an organised part of the enterprise, the transaction will be subject to VAT, as also pointed out by the tax authorities (e.g. tax ruling of 16 August 2023, Director of National Tax Information, ref. no. 0112-KDIL3.4012.360.2023.2.MBN).

2) TCLT

If the disposal of an organised part of an enterprise is not subject to VAT, it may be subject to civil law transaction tax. In order to determine whether the disposal of an organised part of an enterprise will be subject to civil law transaction tax, it is necessary to consider the nature of the transaction in which the organised part of the enterprise is sold.

The list of activities subject to civil law transaction tax is closed, and therefore the activities listed in the Act are subject to this tax. Therefore, if the disposal of an organised part of an enterprise takes place on the basis of an activity listed in the statutory catalogue, such a disposal should be subject to civil law transaction tax. For example, the tax authorities confirm that the sale of an organised part of an enterprise is subject to TCLT (see, for example, the tax ruling of 31 October 2024, Director of National Tax Information, ref. no. 0111-KDIB2-2.4014.208.2024.4.KK).

However, if the transaction on the basis of which the OPE is disposed (transferred) is not listed in the TCLT Act, then such a transaction will not be subject to TCLT.

Therefore, from the perspective of civil law transaction tax, the type of transaction on the basis of which the OPE is transferred is important.

3) Other tax areas

The disposal (transfer) of a OPE also has tax consequences in other tax areas, including income tax. Therefore, each time a OPE is disposed, the tax consequences must also be analysed in other taxes.

Factors determining the determination of an OPE

In summary, from a tax perspective, the common denominator for the correct determination of VAT and TCLT tax effects is the verification of whether the subject of the transaction is a set of components that can be classified as an OPE.

From a practical perspective, an OPE should be a set of tangible and intangible components, including liabilities, which should be properly separated in the following areas, namely:

• organisational – an OPE should exist within the organisational structure of a given enterprise as, for example, a department, division or branch.
• financial and accounting – this is to ensure that revenues and costs as well as receivables and liabilities can be allocated to the economic activity of a given OPE.
• functional – an OPE should be intended to perform a specific economic task.

Economic practice shows that an OCP may consist of various components, including, among others:

• personnel, including employees and persons cooperating on the basis of civil law contracts;
• real estate;
• other fixed assets;
• trademarks, word and graphic signs;
• bank accounts;
• financial resources;
• databases, knowledge resources;
• technical and design documentation;
• know-how;
• electronic equipment;
• rights and obligations arising from contracts;
• receivables and liabilities related to the PBE.

For each transaction, the scope of components included in the OPE may vary, but it is important that the components that are interrelated constitute a certain set of components, rather than a collection of random elements whose only common denominator is their belonging to the same economic entity.

Tax risks

The complexity of the definition of an organised part of an enterprise, diverse factual (transactional) circumstances and the variability of tax authorities’ positions give rise to the main tax risk, which comes down to the fact that the tax authority may question the subject of the transaction as an organised part of the enterprise and determine the tax consequences for the individual components being disposed (transferred).

The above tax risk entails a number of potential tax consequences, including:

• the arise of tax arrears;
• the accrual of interest on tax arrears;
• the risk of criminal tax liability for individual natural persons.

Tax insurance

Therefore, in the event of the disposal of an organised part of an enterprise, the tax risk is significant for both business entities (taxpayers) and the persons managing them.

A well-known way of securing tax risk is to obtain an interpretation of tax law, although this solution is time-consuming, uncertain in view of the individual assessment of the tax authority in each case, and sometimes also imperfect due to the limited scope of protection resulting from the tax ruling.

Therefore, tax insurance is a solution that is gaining popularity as a means of securing transaction tax risk. In the case of the sale of an organised part of an enterprise, tax insurance may prove to be a tool enabling the appropriate management of the transaction process and tax risk, as well as providing a specific safeguard for the interests of those involved in the disposal (transfer) of the organised part of the enterprise.

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