Withholding tax on dividends in Poland – latest position of the Supreme Administrative Court of Poland (NSA)

Recent NSA case law confirms that the WHT dividend exemption in Poland does not require the dividend itself to be effectively taxed at recipient level. At the same time, the judgments of 8 July 2026 increase uncertainty for multi-tier holding structures: the look-through approach (LTA) cannot replace the statutory direct shareholding requirement. This position is in tension with Ministry of Finance guidance issued on 3 July 2025.

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When can a dividend qualify for a WHT exemption in Poland?

The principal conditions are set out in Article 22(4)–(4d) of the Polish CIT Act. They include a direct holding of at least 10% in the dividend-paying company and, as a general rule, an uninterrupted two-year holding period.

The recipient must also be subject to income tax on its entire income in its country of residence and must not benefit from an exemption covering all of its income.

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Does the dividend itself have to be effectively taxed?

No. In its judgment of 3 June 2026, case no. II FSK 960/25, the NSA held that Article 22(4)(4) does not impose a separate requirement for the specific dividend to be effectively taxed.

The judgment of 9 June 2026, II FSK 1143/23, follows the same approach. An income-specific exemption for dividends in the recipient’s jurisdiction therefore does not, in itself, prevent application of the Polish WHT exemption.

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Is beneficial ownership a condition for the exemption?

In its judgment of 13 August 2025, II FSK 1510/22, the NSA held that beneficial owner status is not a separate condition expressly imposed by Article 22(4).

This does not mean beneficial ownership can always be disregarded. The payer must continue to exercise due diligence, while beneficial owner status may remain relevant in the broader WHT analysis, including anti-abuse rules and the procedure for obtaining an opinion on the application of WHT preferences.

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Does limited holding-company substance prevent the exemption?

Not automatically. In its judgment of 6 February 2026, II FSK 1150/25, the NSA stressed that a holding company’s personnel and physical resources must be assessed in light of the nature of its activities.

Relevant factors include the functions performed, decision-making processes and the economic rationale for the entity’s role in the structure.

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Can the look-through approach be used?

This is currently a key area of risk. In judgments issued on 8 July 2026, the NSA held that the LTA may help identify the beneficial owner but cannot transfer the statutory direct shareholding requirement between entities.

This position differs from the Ministry of Finance guidance of 3 July 2025 and favourable individual KIS rulings permitting the LTA in certain structures.

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What should a WHT payer verify before payment?

Before paying a dividend to a foreign shareholder, the Polish company should review:

• the ownership structure and shareholding period;
• the recipient’s status and role;
• how the dividend is used or transferred;
• tax residence and taxation of the relevant entities;
• the economic rationale of the structure;
• documentation demonstrating due diligence.

The PLN 2 million threshold is also important. The pay-and-refund mechanism applies to specified payments to related entities exceeding that amount to the same taxpayer during the payer’s tax year. Instruments such as the WH-OSC payer statement and an opinion on the application of WHT preferences may allow preferential treatment where the relevant conditions are met.

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If you have any further questions or require additional information, please contact your business relationship person or use the enquiry form on the HLB Poland website.

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