POLAND Law and Practice Contributed by: Michał Wołoszański, Łukasz Kudela and Marta Solarska-Kaleńczuk, Wołoszański & Partners
1.2.3 ESG/Sustainable Finance Poland has not adopted dedicated ESG or sustain- able-finance rules for crypto-assets. EU rules apply on two levels. MiCA itself requires issuers and trad- ing-platform operators to publish information on the environmental impact of the consensus mechanism, using the methodology developed by ESMA. Broader sustainable-finance rules – in particular the SFDR (Regulation (EU) 2019/2088) and the Taxonomy Reg- ulation – apply to financial-market participants that include exposure to crypto-assets in their products, on the same basis as for any other underlying. Polish supervisors have not issued sector-specific ESG guid- ance for crypto-assets. 1.2.4 Tax Scope and Basic Regime Polish tax law has been updated to address digital assets, but only partially. The tax acts refer to “virtual currency”, a concept derived from Polish AML leg- islation, rather than to the broader MiCA concept of “crypto-assets”. The tax treatment is therefore rela- tively settled for mainstream exchange or payment tokens, but less certain for NFTs, utility tokens and tokenised real-world assets. Income, VAT and Civil Law Transactions Tax Income from the paid disposal of virtual currency is generally taxed separately at a flat 19% rate. Paid disposal includes exchanging virtual currency for fiat currency, goods, services or property rights other than virtual currency, while the exchange of one virtual currency for another is tax-neutral. Deductible costs are generally limited to documented acquisition and transaction costs. Corporate taxpayers are subject to a broadly parallel regime, subject to general CIT rules. VAT exemption applies to the exchange of virtual cur- rency for fiat where the asset functions as a means of payment, and the sale or exchange of virtual currency is excluded from Polish tax on civil-law transactions. Main Uncertainties and DAC8 The main uncertainties concern staking, lending, yield farming, airdrops and hard forks; the classification of NFTs, utility tokens and tokenised real-world assets; the treatment of crypto receipts in business activity; and the practical application of DAC8 reporting, par-
the Polish law on registered pledges, although market practice is still developing and practical issues remain around identification, perfection, control and enforce- ment. The Polish Act on Certain Financial Collateral Arrangements, implementing Directive 2002/47/EC, is focused on cash, financial instruments and credit claims, and is not designed for general crypto-assets unless a particular token separately qualifies as an eligible financial instrument. 1.2.2 Access to Banking Banking and Payment Partners Polish law does not impose a specific statutory restric- tion on the choice of banking and payment partners by firms providing crypto-asset services in Poland; the relationship is governed primarily by the bank’s own commercial policy, AML and sanctions risk assess- ment and overall risk appetite. In practice, however, access to banking has been one of the most signifi- cant operational constraints for crypto-asset firms. Several banks have applied de facto restrictions on clients whose principal activity consists in crypto- asset trading or exchange, including refusing to open accounts or terminating existing relationships. KNF Guidance and De-Risking In 2022, a KNF communication on the application of the AML Act to co-operation with virtual-currency entities, issued in the context of EU sanctions against the Russian Federation and Belarus, called on super- vised entities to apply a risk-based approach, includ- ing enhanced financial-security measures where appropriate and termination of the relationship where the relevant AML or sanctions risks could not be ade- quately mitigated. While the communication does not prohibit co-operation between banks and VASPs, it reinforced an already conservative approach to the segment. Outlook Under MiCA MiCA, the future Polish implementing legislation and the new EU AML framework may gradually reduce de-risking pressure as licensed CASPs come under an EU-wide supervisory regime. However, banking access is likely to remain dependent on each institu- tion’s risk assessment.
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