The actual start of operations

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The most important regulations regarding the obligations and rights of entities starting a business can be found in the Entrepreneurs' Law Act in force from April 30, 2018. Do the regulations directly specify the moment of starting a business? When looking for an answer to this question and the related doubts, e.g. as to the correct determination of the moment when a tax obligation arises along with setting up a business, it is worth reading below.

The actual start of the business

Article 17 (1) 1 of the said act states that economic activity may be undertaken:

  • on the day of submitting the application for entry in CEIDG, or
  • after entering into the register of entrepreneurs of the National Court Register.

There is no known law to find a precise definition explaining what is the actual moment of starting a business. Practice shows that the registration entry is declarative, i.e. it confirms the already existing state of affairs, but does not create a new legal situation. It has an informative value.

This position is confirmed by the judgment of the Provincial Administrative Court in Poznań of November 3, 2010, ref. No. no. IV SA / Po 646/2010:

The entry in the register of economic activity itself is not constitutive, but declarative in nature, and in terms of its entire content, i.e. from the point of view of tax or insurance law, the actual conduct of business activity in its various subjects is important (so the mere notification of a break in running a business is irrelevant). economic).

Similar case law was issued by the Supreme Court - Civil Chamber in its judgment of 5 March 2010, file ref. no.IV CSK 371/2009:

1. Notification and entry in the register of economic activity is only the basis for starting a business within the meaning of its legalization and is not an event or activity equated with taking up such activity. Determining by the entrepreneur himself the date of commencement of the activity entered in the register results only in the factual presumption that this activity was undertaken and that it is carried out if the relevant entry is still entered in the register.

2. A civil law partnership, which does not have the status of an entrepreneur, cannot use the company. However, it is traded under a name that does not enjoy the protection of corporate law. The Civil Code does not regulate the rules for selecting a civil partnership name. It should also be emphasized that the name of the civil law partnership is not registered anywhere.

It should also be noted that Art. 5 sec. 2 point 1 of the Act on the Central Register and Information on Economic Activity and the Information Point for Entrepreneurs says that the entry in CEIDG should include, inter alia, "Date of commencement of economic activity". Art. 16 sec. 1 of the Act presupposes that the information entered in CEIDG is true. The point is that the entrepreneur is responsible if the data declared by him turn out to be false.

The moment of starting the activity - summary

The regulations do not contain the phrase "the actual commencement of economic activity", therefore the best solution is to provide a systemic interpretation, which will be based on other, detailed regulations. The most appropriate one will be to compare your situation with the existing case law on analogous situations. Additionally, it is possible to use other, specific acts, e.g. the act on flat-rate income tax on certain revenues earned by natural persons (Article 7 (1)).

In tax matters, the actual date of commencement of operations may be the very day of establishing the entity that will be the taxpayer. For example, the date of commencement of the activity of a limited liability company despite the fact that it is not registered in the National Court Register, this may be the date of concluding the articles of association. The moment of starting a business does not have to result from the very fact of registering the business (in CEIDG or KRS) or even from obtaining the first taxable income or incurring any first costs. Therefore, we encourage you to read the jurisprudence of judicial authorities and the opinions of legal experts to determine the actual moment of starting a business in a specific case.