The judgment of the Voivodeship Administrative Court (WSA) in Warsaw of 8 April 2026 (case no. III SA/Wa 2554/25) concerned the possibility of applying the General Anti-Avoidance Rule (GAAR) in a situation where a management board member provided additional intermediary services to a related company as part of their business activity. The essence of the dispute was whether such a cooperation model constituted genuine business activity or an artificial arrangement aimed primarily at obtaining a tax benefit.
The case concerned the application of the GAAR by the tax authorities to an individual conducting business activity. The authorities challenged two groups of transactions carried out by the taxpayer in 2017 and 2018.
The first group concerned the provision of professional intermediary and advisory services to a capital company in which the taxpayer served as President of the Management Board and held a majority shareholding. These services were performed under a number of agreements concluded between the parties. According to the tax authorities, the activities carried out under those agreements overlapped with the duties arising from the taxpayer’s position as a management board member. At the same time, the taxpayer did not receive remuneration for performing management board functions, while the income earned under the agreements was classified as business income subject to the 19% flat-rate tax.
The second group of transactions concerned rights to Community designs. The taxpayer first donated industrial design rights to her son and, after several days, reacquired the same rights. Importantly, the son did not include the acquired rights in his fixed asset register. Following the reacquisition, the taxpayer entered the rights into her register of intangible assets, which enabled her to make tax-deductible amortization write-offs. The rights were subsequently licensed for consideration to entities related to the taxpayer.
The tax authorities considered the above actions artificial and primarily aimed at achieving tax benefits. With respect to the Community designs, the authorities pointed to the “circular” nature of the transactions, meaning that the taxpayer achieved a more favorable tax position without any real change in the economic situation. They also highlighted what they considered to be an unjustified division of operations related to the transfer of the industrial design rights.
As a consequence, the authorities assessed personal income tax liabilities for 2018, concluding that the tax benefits obtained included, among other things, the avoidance of a tax liability and the reporting of a tax loss resulting from the inclusion of amortization write-offs on the industrial designs as tax-deductible expenses.
The taxpayer disagreed with the position of the Head of the National Revenue Administration (KAS) and filed a complaint with the Voivodeship Administrative Court.
The Court held that the taxpayer’s arguments concerning the constitutive nature of the decision issued by the Head of KAS were unfounded. In the Court’s view, the decision was declaratory in nature, based on Article 21(3) of the Polish Tax Ordinance Act, and concerned a tax liability arising directly by operation of law. The Court also rejected the taxpayer’s arguments regarding the limitation period applicable to the tax liability.
However, the Court disagreed with the tax authorities regarding the application of the GAAR to the intermediary services provided by the taxpayer.
According to the Court, the authorities incorrectly assumed that the professional intermediary services described by the taxpayer fell within the scope of duties performed as a management board member.
The Court emphasized that the primary role of a management board member is to manage the company’s affairs and represent the company. These responsibilities should not automatically be equated with additional activities, even if such activities fall within the company’s business scope. Furthermore, with respect to those additional services, a management board member remains free to determine how they are performed, the legal basis on which they are provided, and the remuneration received.
Therefore, the Court agreed with the taxpayer’s position that holding a management board position does not preclude entering into a separate legal relationship with the company for the performance of additional services.
The Court also acknowledged the taxpayer’s argument that the duties of a management board member should be distinguished from the intermediary services described in the case, which primarily consisted of sales-related activities aimed at acquiring customers and concluding contracts. Moreover, the contractual relationship between the company and the taxpayer was not unique, as the company had entered into similar agreements with other individuals who also performed professional intermediary services in exchange for commission-based remuneration.
Consequently, the Voivodeship Administrative Court did not share the tax authorities’ view that entering into additional intermediary and advisory service agreements with a management board member should automatically be treated as an artificial arrangement aimed primarily at obtaining a tax advantage.
The Court stressed that the mere fact of serving as a management board member does not exclude the possibility of simultaneously performing other activities for the company under a separate legal relationship, particularly where such activities are genuine in nature and go beyond the core responsibilities associated with managing and representing the company.
The judgment also demonstrates that tax authorities cannot automatically classify every cooperation arrangement between a company and its management board member as an artificial structure solely because it produces specific tax consequences. Instead, each case should be assessed individually, taking into account the actual nature of the services provided and whether they genuinely extend beyond the statutory duties of a management board member.