The progressing digitalisation of tax administration enables faster and more automated fulfilment of tax obligations on the one hand, and on the other constitutes a vast source of data for tax authorities about the transactions concluded by taxpayers with related entities. The information about intra-group transactions is not only provided by the TPR form but also by JPK, ORD-U, CbC forms and financial statements.
Standard Audit File (JPK from Polish Jednolity Plik Kontrolny)
From 1 October 2020, all VAT payers are to be obliged to submit – monthly – the new JPK_VAT file in the form of an electronic document comprising two parts – the registration part (including the VAT records of purchases and sales) and the declaration part. The new JPK file will require taxpayers to apply special designations not only in relation to the subject matter of the sale but also in relation to transaction types. An applicable symbol in the case of transactions with related entities will be TP.
It should be noted that the information transferred in the JPK_VAT form will make it easier for tax authorities to verify the arm’s length nature of the prices applied in transactions between related entities, e.g. through the application of the comparable uncontrolled price method in the variant of internal comparison, by compiling the selling prices for comparable commodities in transactions with related and unrelated entities.
ORD-U forms enable legal persons, organisational units without legal personality and natural persons running business activity to fulfil their obligations in the scope of providing tax authorities with the data about agreements concluded with non-residents as interpreted in the provisions of the foreign exchange law, including the identification data of the obliged party and the non-resident.
The obligation to file ORD-U forms is imposed on the aforementioned entities if the conditions provided for in the Regulation dated 24 December 2002 on tax information have been fulfilled and the following defined thresholds have been exceeded: EUR 300,000 in the case of agreements between related entities, or EUR 5,000 for agreements with non-residents having an enterprise, branch or representative office (as interpreted in separate regulations) in the territory of the Republic of Poland.
It should be noted that the threshold of equity ties pursuant to the regulations concerning ORD-U is 5% and therefore it is more restrictive than the threshold of equity ties stipulated in transfer pricing regulations which is equal to 25%.
ORD-U forms should be filed within three months of the end of the financial year. The information is to be filed regardless of the tax authority sending a request.
What is important, on 1 January 2019, the regulation concerning the exemption from the obligation to submit information about agreements concluded with non-residents in the ORD-U form applicable to the taxpayers who filed simplified CIT-TP / PIT-TP statement for the financial year 2018 was repealed and thus the fact of filing the TPR form for the financial year 2019 does not exempt from the obligation to submit the ORD-U tax return.
The next source of information about transfer pricing is the CbC-R form (Country-by-Country Reporting). The obligation to file the CbC-R form is applicable to all parent undertakings belonging to the group of entities having their registered office or management in the territory of the Republic of Poland, with consolidated revenues equal to PLN 3.25 billion ifthe financial statements are drawn up in Polish zlotys, or to EUR 750 million or the equivalent amount.
The information provided in the CbC-R form includes mainly the size of the conducted business activities (the amount of assets, initial capital, number of employees), the size of generated revenues (broken down into those generated from independent entities and the undertakings belonging to the groups of entities), the generated profits (or losses), paid (and due) tax, locations of conducting business activities and the objects of such business activities.
The information about the group of entities may be used by tax authorities to analyse the risk of understating the taxable income in the area of transfer pricing and for other economic or statistical analyses.
In addition, the entities being members of capital groups with their results consolidated in the financial statements of the group subject to the obligation of CbC-R reporting and not being the parent undertaking are obliged to submit the CbC-P notification specifying the reporting entity and the country in which the relevant CbC-R report will be submitted.
The deadline for submitting the CbC-R information about the group of entities expires upon the end of the 12 months after the day ending the reporting financial year, while the deadline for submitting CbC-P notification is three months after the day ending the reporting financial year of a given group of entities. The information is to be filed electronically, regardless of the tax authority sending a request.
Also, financial statements may provide tax authorities with transfer pricing information. The Accounting Act imposes the obligation of revealing transactions with related entities in financial statements. Thus, tax authorities may look for additional information both in the profit and loss account, balance sheet, cash flows statement and relevant notes to the financial statements.
Amendments to the Code of Commercial Partnerships and Companies
The Code of Commercial Partnerships and Companies (CCP&C) was created in 2000 and since that time, it has not been updated and reformed in multiple areas.
The amendment to the CCP&C is planned for the fourth quarter of 2020. The amendments will include new regulations concerning the introduction of the so-called holding law (the law of the groups of companies, concern law). The participation in the group of companies by the parent company and a subsidiary is to be revealed in the National Court Register through the entry of the relevant note into the register. The proposed amendments are to provide the parent company with the possibility of giving other companies from the group binding instructions in order to pursue a joint strategy, provided that the subsidiary – upon the satisfaction of appropriate conditions – may refuse to carry out the binding instruction, for example, if compliance with the instruction could lead to the insolvency of the said company or to the threat of insolvency, or there is a justified threat that it is contrary to the interest of the said company and will cause it harm which will not be repaired by the parent company or another subsidiary belonging to a given group in the period of the next two years.
In addition, under the amendments to the CCP&C, the subsidiary belonging to the group of companies is obliged to draw up a statement on the ties of the said company with the parent company for the period of the last financial year and to specify the binding instructions given to that company by the parent company. Such a statement is to be a part of the management report.
Furthermore, the holding law is to regulate the private law relations between the parent company and its subsidiaries in a manner that takes into account the interest of creditors, members of corporate bodies and minor shareholders of – especially – the subsidiary. The amendment to the CCP&C also introduces the business judgement rule to the Polish legislation, which consist in the exclusion of the liability of the managing persons for harmful consequences of their decisions provided that certain standards of conduct in the scope of diligence and loyalty to the company when making specific business decisions are fulfilled, and the said amendment also defines the basic obligations of the members of corporate bodies.
Given such amount of information and data provided in different forms to tax authorities, the taxpayers should not only pay attention to the coherence of the provided data but also perform the transfer pricing audit in order to identify issues which may be of interest to tax authorities and may possibly lead to the selection of a given taxpayer for inspection. The exercising of due care in the fulfilment of any and all obligations related to reporting may be advantageous given the amended regulations of the CCP&C.
Paulina Szemiel, Manager in Transfer Pricing Team at KPMG in Poland
Monika Bonikowska, Consultant in Transfer Pricing Team at KPMG in Poland