New General Interpretation of the Ministry of Finance
On 29 July 2025, the Minister of Finance and Economy issued a general interpretation concerning the reporting of tax schemes (MDR) in the case of an increase in the share capital of a capital company where part of the contribution in excess of the nominal value of the shares acquired is allocated to the company’s reserve capital.
When is reporting not required?
The Minister indicated that not every transaction with a premium is subject to MDR reporting. In particular, as indicated by the Minister, a situation where the surplus contribution does not allow for the acquisition of a larger number of shares is not subject to reporting. In practice, however, such increases are not common. The Minister further indicated that an increase in share capital from agio will not be subject to reporting if the objectives of such an increase were other than tax purposes, e.g. resulted from an investment agreement or articles of association.
When is reporting required?
As indicated by the MF, the MDR obligation arises if: the purpose of the premium structure was to deliberately reduce the PCC tax base by not increasing the share capital by the entire value of the cash contribution. In such a situation, the main benefit criterion is met and, in addition, the general identifying feature (e.g. standardised documentation) is fulfilled. In addition, compliance with the definition of a qualified beneficiary and the cross-border nature of the transaction should be verified.
Does the general interpretation really dispel taxpayers’ doubts?
Although the general interpretation of the Minister of Finance and Economy of 29 July 2025 was intended to clarify the rules for reporting tax schemes (MDR) in the context of increasing share capital with a share premium, in our opinion it does not introduce any significant changes to the practice developed so far.
However, although it does not provide complete clarity, it does question the automatic reporting of every share premium.
In practice, taxpayers should examine each case separately and ensure that the transactions carried out are economically justified.