POLAND Law and Practice Contributed by: Wojciech Trzciński, Łukasz Łyczko, Konrad Frąckowiak and Katarzyna Kaczmarzyk, PwC Legal Business Solutions
3.3 Regulatory Regime for Managers SOEIFs and CEIFs
3.5 Rules Concerning Permanent Establishments There are no specific local permanent establishment exemptions for AIFMs. 3.6 Taxation of Carried Interest There are no special provisions as to qualification of carried interest income. The available practice is also very limited, and treatment may depend on the par - ticularities of the given carried interest arrangement. However, in general, there are two possible options for classifying such proceeds: • income from business activity; or • capital gains. 3.7 Outsourcing of Investment Functions/ Business Operations Outsourcing of Investment Activities The AIFM may entrust an entrepreneur or a foreign entrepreneur (who has its registered office outside the EU) to perform activities related to its investment activity. The regulatory requirements mostly arise on the basis of the IFA, Commission Delegated Regula - tion (EU) No 231/2013, and relevant PFSA/European Securities and Markets Authority (ESMA) guidelines. While entrusting the activities, the AIFM needs to ensure that the delegation does not affect the obliga - tions of the AIFM towards the AIF and its investors in any way. As per the EU regulation, the relevant authorities have to be provided with a detailed description, explanation and evidence supporting the objective reasons for the transfer based on: • optimisation of functions and processes; • cost savings; • the delegate’s expertise in administration or spe - cific markets or investments; and • the delegate’s access to global trading opportuni - ties. The entrepreneur or a foreign entrepreneur needs to: • have sufficient resources;
The AIFM of SOEIFs and CEIFs (ie, the IFC) needs to possess the licence issued by the PFSA. Numerous legal and financial documents related to the IFC, the IFC’s capital group and the members of the governing bodies of the IFC need to be presented to the PFSA in the process of obtaining said licence. The IFC is also obliged to implement internal procedures related to internal control, investment decisions, financial con - trolling, compliance, risk management, conflicts of interest and AML. The IFC is obliged to perform its obligations of the AIFM independently, in the interest of the investors. As a Polish joint stock company, the IFC is also obliged to submit its annual financial statements to the publicly accessible electronic repository of finan - cial documents. AICs The AIFM of an AIC must also obtain a licence from the PFSA to conduct its business; the requirements are similar to those mentioned above for the IFC. In the case of registered AICs (ie, AICs that are not required to obtain the licence – see 2.2 Regulatory Regime for Funds ), the simplified registration procedure applies and the reporting requirements are also limited. Annual financial statements of Polish AIFMs of AICs and AICs must be filed in the publicly accessible elec - tronic repository of financial documents. The AIFM of an AIC also runs a website, where it publishes information and announcements required by law. Such information includes an engagement policy that describes how the AIC takes into account the engagement of shareholders of such companies in its investment strategy, a report on the implementation of the policy, or an explanation of the reasons for not developing or publishing that policy. 3.4 Tax Regime for Managers There are no specific local rules regarding the taxation of AIFMs.
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