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Poland: depreciation for registered trade marks only
The assembly of shareholders of a Polish company (spolka z ograniczona odpowiedzialnoscia - a legal concept similar to the limited company), following a resolution, decided to increase the company's share capital by the creation of new shares. The new shares were covered by the shareholders in the form of an enterprise (the enterprise as as a subject of rights). One of the components of the enterprise was a trade mark valued at 750,000 PLN (around 179,016,307 Euros). The trade mark was entered in the company's books in 2000 and the company started depreciating this asset in 2001 based on the provisions of article 16b(1)(6) of the Polish Act of 15 February 1992 on legal persons’ income tax - LPIT (in Polish: Ustawa o podatku dochodowym od osób prawnych) consolidated text published in Dziennik Ustaw (Journal of Laws) of 2000, No. 54, pos. 654 with subsequent amendments
The following intangible assets, acquired and fit for commercial use as at the date of acceptance for use, shall be depreciated, subject to Article 16c:This action was called into question by the Director of the Tax Office, who duly imposed tax (19,006 PLN for year 2002). The company appealed against this decision to the Director of the Tax Revenue Audit Office, but it was upheld. The findings made in the course of the investigation showed that, both in 2002 and in an earlier period of time, the sign in question had not been granted the right of protection, having been applied for at the Polish Patent Office on 8 November 2000.
(6) rights to: inventions, patents, trade marks, designs;
The company filed a complaint to the District Administrative Court (DAC).
The DAC in Rzeszów, in its judgment of 21 May 2009, act signature I SA/Rz 249/09, ruled that provisions of the LPIT allow only for the depreciation of the registered trade mark, since mere priority (the right of priority) to obtain a right of protection for a trade mark is not the right which is explicitly mentioned in article 16(1) of the LPIT.
The DAC emphasized the fact that the acquisition of rights to a trade mark occurs within the system of constitutive registration, the law-creating nature of which is attributed to "an act of registration" made by the Polish Patent Office in the form of the administrative decision. The only exception to this rule is the acquisition of rights to well-known trade marks, the protection of which does not depend on the registration - but it was not the issue of this case. Posted by: Tomasz Rychlicki @ 15.45
Tags: Poland, Polish courts, Polish law, Polish trade marks, taxes,
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