KPMG Weekly Tax Review 09 AUG - 16 AUG 2021 KPMG Weekly Tax Review 09 AUG - 16 AUG 2021 KPMG Weekly Tax Review 09 AUG - 16 AUG 2021

It is 16 August 2021. We invite you to the next episode of the “Weekly Tax Review” prepared in cooperation with tax experts in KPMG in Poland.

• Draft bill introducing a new packaging fee
• Draft of the e-Invoice logical structure
• Leaseback can be treated as tax avoidance
• New maximum rates in local taxes and fees for 2022
• SAC: Landmark rulings on the housing tax relief
• Ministry of Finance answers questions on e-invoice security
• New template of the VAT-26 form

The Ministry of Climate and Environment published a draft bill amending the Act on Packaging and Packaging Waste and certain other acts, which is to introduce, inter alia, a new packaging fee payable by entities marketing packaged household products. The rates for each packaging type will be established by the Minister of Climate and Environment by way of decree. The rates will depend, inter alia, of the type of packaging, recycling possibilities, recycled content in plastic packaging after taking into account revenues from reuse, sales of recycled materials and missed deposits. The maximum rate is to amount to PLN 2 per every kilogram of a given type of packaging. Entities introducing packaged household products to the market will be also required to pay contributions to producer responsibility organizations. The new provisions are to become effective on 1 January 2023.

The Ministry of Finance presented a draft of the logical structure of the new e-invoice, along with a number of sample e-invoices depicting how the structure should be handled in particular cases. Starting from 1 January 2022, companies will be offered a possibility to issue structured invoices (e-invoices) via National e-Invoicing System. At first, the solution will be available for use on a voluntary basis. The Ministry made the draft public to help entrepreneurs adjust their IT systems to a new solution in a timely manner. 

On 10 August 2021, the resolutions of the Anti-Tax Avoidance Council of 22 July 2021 on real estate tax (case files 4/2021, 5/2021, 6/2021, 7/2021, 8/2021 and 9/2021) were published on the Ministry of Finance’s website. According to the Council, a series of activities performed by and between related entities, encompassing sale of a structure (telecom infrastructure), combined with leaseback, had for purpose artificial diminishing of the taxable base in real estate tax, which led to obtaining a benefit, against the object and purpose of the tax act. The Council pointed out that the arguments supporting the opinion that the transaction was artificial in nature include, inter alia, the fact that on the same day the party and the buyer concluded a bond agreement, and the funds thus obtained were to allow the buyer to pay the sale price of the telecom infrastructure as well as incur tax charges for property arising in the following months and years. As a result of concluding a sales agreement and leaseback agreement, the party ceased to be the direct owner of a major part of the telecom infrastructure, while keeping the right to use it in its business activity. As a result, its taxable base in real estate tax was diminished.

On 9 August 2021, the Minister of Finance issued a notice setting out the maximum rates of local taxes and fees, including the real estate tax, applicable in 2022. Compared to 2021, the rates will rise by 3.6% (to reflect the difference between the consumer price index for H1 2021 and H1 2020). It should be kept in mind, however, that the municipal council may decide to keep the rates of local taxes and fees unchanged.

In its rulings of 10 August 2021 (case files: II FSK 3598-3600/18 and II FSK 3751/18), the Supreme Administrative Court challenged the tax authority’s opinion that the PIT act provisions preclude the possibility to consider the expenditure on renovation of the common parts and equipment of the building jointly owned by the applicants as intended for their own housing purposes. Furthermore, the Court stated that the documents supporting that the taxpayer incurred expenses for their own housing purposes do not have to be issued for the taxpayer but, just as in the case at hand, also for a homeowner association.

On 4 August 2021, in reply to a parliamentary inquiry no. 24922 on the security of e-invoices, the Secretary of State at the Ministry of Finance, Magdalena Rzeczkowska, explained that the data collected via National e-Invoicing System will be duplicated and saved as backup copies, to protect against their loss (also in highly unlikely situations of hardware failures). Both data and communication will be encrypted. System authorizations will be safeguarded by the highest quality protection standards. The Secretary also noted that any disclosure of information covered by fiscal secrecy, pursuant to Article 306 of the Tax Code, shall be subject to the penalty of imprisonment of up to 5 years, and up to 2 years if the perpetrator acts unintentionally. Furthermore, the State Treasury will be liable under the terms of the Civil Code for any business losses that may be incurred by entrepreneurs whose data is stolen or illegally transferred.

On 6 August 2021, a draft decree on the template of information on motor vehicles used exclusively for business activities was published on the Government Legislation Centre’s website. The decree sets forth a new template of information on motor vehicles used exclusively for business activities (VAT-26), which is to be adjusted to the amendments brought about by the Slim VAT 2 package. The main changes concern the extension of the deadline for submitting the form (now it must be submitted within 7 days from the date on which the first expenditure related to a given vehicle was incurred. Under the amendments, it will be possible to submit it up to the 25th day of the month following the month in which the first expenditure related to a given vehicle was incurred) and explanatory notes to the form. According to the draft, the new template is to become available on 1 October 2021.