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

The latest case law of the Supreme Administrative Court of Poland (NSA) clarifies several important conditions governing the withholding tax on dividends in Poland. The NSA has confirmed that a dividend recipient benefiting from an income-specific exemption in its country of residence does not, in itself, prevent the application of a WHT exemption in Poland. Article 22(4)(4) of the Polish Corporate Income Tax Act refers to an exemption from tax on the recipient’s entire income, rather than to effective taxation of the dividend itself.

At the same time, case law concerning beneficial ownership and the payer’s obligations calls for caution. The NSA has indicated that beneficial owner status is not expressly listed in Article 22(4) of the CIT Act as a condition for the dividend exemption. This does not, however, mean that beneficial ownership is irrelevant in every WHT proceeding.

Multi-tier structures present an additional risk. In its judgments of 8 July 2026, the NSA held that the look-through approach (LTA) cannot replace the requirement for the entity claiming the exemption to hold shares directly. This position is in tension with the Ministry of Finance guidance of 3 July 2025 and favourable individual tax rulings subsequently issued on its basis.

For a Polish company paying a dividend to a foreign shareholder, this means that applying a WHT dividend exemption should be preceded by a careful WHT Poland analysis of the specific ownership structure, the recipient’s status and the documentation demonstrating that the conditions for preferential WHT treatment have been met.

---

When can a dividend qualify for a withholding tax exemption in Poland?

The basic conditions for the exemption are set out in Article 22(4)–(4d) of the Polish CIT Act. The preferential treatment may apply to dividends paid between qualifying companies provided that all statutory conditions are met.

One of the fundamental requirements is a direct holding of at least 10% of the shares in the capital of the company paying the dividend. As a general rule, the shares must also be held continuously for two years.

The company receiving the dividend must also be subject, in its country of residence, to income tax on its entire income regardless of where that income is earned and must not benefit from an exemption from tax on all of its income.

The interpretation of this last requirement has been one of the significant sources of WHT disputes concerning dividends in recent years.

---

Does the dividend have to be effectively taxed in the recipient’s country?

This requirement does not follow from Article 22(4)(4) of the CIT Act. In its latest case law, the NSA has held that the provision concerns whether the recipient benefits from an exemption covering all of its income, rather than whether the specific dividend received is effectively taxed.

A key ruling is the NSA judgment of 3 June 2026, case no. II FSK 960/25. The Court held that Article 22(4)(4) of the CIT Act makes the WHT exemption conditional on the company receiving the dividend not benefiting from an entity-level exemption in its country of residence. The provision does not impose a separate requirement for the dividend itself to be effectively taxed.

The NSA also considered the relationship between the Polish rules, Directive 2011/96/EU and the case law of the Court of Justice of the European Union (CJEU). At the same time, it held that taxpayers should not bear the consequences of defective implementation of EU law.

A similar approach follows from the NSA judgment of 9 June 2026, case no. II FSK 1143/23. The Court held that where a company is not exempt from taxation on all of its income, an income-specific exemption applicable to dividend income does not, in itself, preclude the application of Article 22(4) of the CIT Act.

This position is consistent with the general interpretation issued by the Minister of Finance on 15 November 2024, no. DD9.8202.1.2024, concerning the conditions for applying the exemption under Article 22(4) of the CIT Act.

This has important practical implications for corporate groups. If a foreign shareholder does not pay tax on a dividend because such income is exempt in its jurisdiction, this does not automatically mean that the Polish company loses the right to apply the WHT exemption. The key issue is whether the foreign shareholder is generally exempt from tax on all of its income, rather than merely on a particular category of income such as dividends.

---

Is beneficial ownership a condition for the WHT dividend exemption in Poland?

Beneficial owner status is not expressly listed in Article 22(4) of the CIT Act as one of the conditions for the dividend exemption. NSA case law includes rulings supporting this interpretation. This does not, however, mean that beneficial ownership can be disregarded in every WHT case.

In its judgment of 13 August 2025, case no. II FSK 1510/22, the NSA held that the exemption under Article 22(4) of the CIT Act does not require the payer to verify the dividend recipient’s beneficial owner status as a separate condition arising from that provision. The payer nevertheless remains required to exercise due diligence when verifying the conditions for preferential WHT treatment.

Beneficial ownership also appeared in 2026 case law, including cases concerning the application of the anti-abuse provision and the procedure for obtaining an opinion on the application of WHT preferences.

This distinction is important in practice. The absence of a beneficial owner requirement from the literal wording of Article 22(4) should not be equated with a general conclusion that beneficial ownership never needs to be analysed when paying a dividend.

For example, when issuing an opinion on the application of WHT preferences, the regulations allow the authorities to refuse to issue such an opinion, among other circumstances, where there are justified doubts concerning the documentation or the taxpayer’s statement regarding the beneficial owner status of the payment recipient. Article 22c of the CIT Act also remains relevant, as it is intended to prevent the exemption from being used in structures meeting the anti-abuse conditions specified in that provision.

---

Does limited substance of a holding company prevent the WHT exemption?

Not automatically. A holding company’s limited personnel or physical resources should not be assessed in isolation from the nature of its activities.

The NSA judgment of 6 February 2026, case no. II FSK 1150/25, is relevant in this respect.

The case concerned the possibility of applying the dividend exemption in the context of Article 22c of the CIT Act. The NSA emphasised that the specific nature of a holding company’s activities must be taken into account when determining whether a structure is artificial.

A holding company does not require the same personnel and physical resources as a manufacturing or operating company. A small workforce, the use of outsourcing or limited assets should therefore not, in themselves, determine that a structure is artificial.

This does not mean that substance is irrelevant. The assessment should take account of all relevant circumstances, including the functions performed by the entity, its decision-making processes and the economic rationale for its presence in the structure.

---

Can the look-through approach be used for the WHT dividend exemption?

Following the NSA judgments of 8 July 2026, using the LTA to satisfy the direct shareholding requirement involves significant risk. The NSA held that an entity claiming the exemption under Article 22(4) of the CIT Act must itself satisfy the requirement to hold the relevant interest directly in the capital of the company paying the dividend.

In the judgments of 8 July 2026, case nos. II FSK 185/25, II FSK 818/25, II FSK 863/25, II FSK 79/26 and II FSK 80/26, the NSA considered a situation in which the beneficial owner of the dividend was located higher up the ownership structure.

The Court held that the LTA may be used to identify the beneficial owner of a payment, but it does not allow statutory conditions for the exemption – including the direct shareholding requirement – to be transferred between entities.

Accordingly, where the entity regarded as the beneficial owner of the dividend holds shares in the Polish dividend-paying company only indirectly, the NSA’s position is that the direct shareholding requirement is not satisfied.

How do the Ministry of Finance guidance and KIS rulings differ from the NSA’s position?

The situation is complicated by the fact that the NSA’s position is in tension with the tax guidance issued by the Polish Ministry of Finance on 3 July 2025 concerning the beneficial owner clause for WHT purposes.

In its guidance, the Ministry of Finance allowed the LTA to be applied subject to certain conditions. For dividends, the Ministry also presented an approach based on the direct shareholding requirement being satisfied successively by entities in the ownership chain.

This approach has also been reflected in the individual tax ruling practice of the Director of National Tax Information (KIS).

For example, in the individual tax ruling of 22 January 2026, reference no. 0114-KDIP2-1.4010.729.2025.1.JF, the Director of KIS accepted the possibility of applying the exemption using the LTA in the structure described in the application.

A similar position follows from individual tax ruling no. 0111-KDIB1-2.4010.82.2026.2.ANK, concerning a structure in which the direct shareholder of the Polish company might not have been the beneficial owner of the dividend, while another EU entity further up the structure was the beneficial owner.

This creates a particularly important issue for WHT payers: the Ministry of Finance guidance and individual tax rulings issued in line with it permit the LTA in certain structures, whereas the latest NSA case law does not allow this concept to replace the statutory direct shareholding requirement.

---

What do the latest NSA rulings mean for WHT payers in Poland?

The current case law cannot be reduced to a general conclusion that applying the dividend exemption has become unequivocally easier or more difficult.

Issue	Current position
Income-specific dividend exemption at recipient level	Does not, in itself, preclude the WHT exemption
Effective taxation of the specific dividend	Article 22(4)(4) does not establish this as a separate condition
Beneficial owner status	Not expressly listed in Article 22(4), but may be relevant to the broader WHT analysis
Limited substance of a holding company	Does not automatically mean that the structure is artificial
LTA and indirect shareholding	According to the NSA judgments of 8 July 2026, the LTA does not replace the direct shareholding requirement
Payer’s due diligence	Remains an important element when applying preferential WHT treatment

Multi-tier holding structures currently require particular caution, especially where the direct recipient of the dividend is not the entity ultimately intended to receive the economic benefit of the payment.

---

How should a dividend payment to a foreign shareholder be prepared in 2026?

Before applying the exemption, the Polish company should first establish who receives the dividend, determine the ownership structure and verify whether the statutory conditions for preferential treatment have been satisfied.

Particular analysis is required where the dividend is subsequently to be transferred to another group entity, the direct shareholder primarily performs a holding function, or the application of preferential treatment is intended to rely on the LTA.

The value of payments is also relevant. The pay-and-refund mechanism applies to specified payments made to related entities where their aggregate value paid to the same taxpayer exceeds PLN 2 million in the payer’s tax year.

Exceeding this threshold does not, however, mean in every case that tax must ultimately be borne at the domestic statutory rate. The regulations provide instruments that allow preferential treatment to be applied where specified conditions are satisfied, including a WH-OSC payer statement and an opinion on the application of WHT preferences.

A WHT analysis should therefore be carried out before the planned payment, while there is still time to collect the necessary documentation and determine the appropriate settlement procedure.

getsix® supports businesses with WHT Poland, including assessing eligibility for an exemption or preferential rate and preparing the documentation required for cross-border payments.

---

What should companies do when a group structure includes several holding companies?

In a multi-tier structure, companies should not assume that identifying the beneficial owner of a dividend is sufficient to apply the exemption under Article 22(4) of the CIT Act. Following the NSA judgments of 8 July 2026, the direct shareholding requirement requires a separate analysis.

Where the direct shareholder of a Polish company is not the beneficial owner of the dividend, while another entity in the EU or EEA is regarded as the beneficial owner, the discrepancy between the Ministry of Finance guidance and favourable individual tax ruling practice, on the one hand, and the NSA’s latest position on the LTA, on the other, must be taken into account.

In such circumstances, the pre-payment analysis should cover, among other matters:

• the group’s ownership structure and the period for which shares have been held;
• the role of individual companies in the payment chain;
• how the dividend received is used or disposed of;
• the tax residence and taxation rules applicable to the individual entities;
• the economic rationale for the structure;
• documentation demonstrating that due diligence has been exercised;
• the possibility of using the instruments provided for under the Polish WHT rules.

---

What are the key issues for the WHT dividend exemption in Poland in 2026?

Case law from 2025 and 2026 has clarified some of the previous disputes concerning withholding tax on dividends, but it has not resulted in fully consistent practice.

An important point for taxpayers is the NSA’s confirmation that an income-specific exemption for dividends in the recipient’s country of residence is not equivalent to an exemption from tax on all income and therefore does not automatically prevent preferential WHT treatment in Poland.

At the same time, beneficial ownership and indirect holding structures require particular caution. The NSA judgments of 8 July 2026 demonstrate that identifying the beneficial owner does not automatically allow the formal direct shareholding requirement to be disregarded.

As a result, before making a significant dividend payment to a foreign shareholder, the analysis should not be limited to a formal review of Article 22(4) of the CIT Act. It should also consider the payment structure, the payer’s due diligence obligations, anti-abuse provisions, current Ministry of Finance guidance and the latest NSA case law.

If a planned dividend payment requires an assessment of eligibility for an exemption, application of the pay-and-refund mechanism or the documentation required from a foreign recipient, getsix® experts can support your company with a withholding tax analysis in Poland. Contact us.

---

Legal basis and case law:

• Act of 15 February 1992 on Corporate Income Tax – in particular Article 22(4)–(4d) and Article 22c.
• Judgment of the Supreme Administrative Court of Poland (NSA) of 3 June 2026, case no. II FSK 960/25.
• Judgments of the Supreme Administrative Court of Poland (NSA) of 8 July 2026, case nos. II FSK 185/25, II FSK 818/25, II FSK 863/25, II FSK 79/26 and II FSK 80/26.
• Tax guidance issued by the Minister of Finance on 3 July 2025 concerning the application of the beneficial owner clause for withholding tax purposes.

---

***