It is 23 May 2022. We invite you to the next episode of the “Weekly Tax Review” prepared in cooperation with tax experts in KPMG in Poland.
In today's episode:
- New clearance opinion on mergers through acquisition
- Production version of KSeF Taxpayer app now available
- Failure to specify the value of tangible property or property rights upon sale and the capital duty
- Overpayment refund only for a taxpayer
- Contractual penalties for withdrawal in the context of VAT
- No possibility to deduct business losses in past years when determining basis for solidarity levy
- Entry into force of VAT grouping provisions postponed
New clearance opinion on mergers through acquisition
On 13 May 2022, a clearance opinion on mergers through acquisition dated 2 May 2022 (case file DKP3.8011.50.2021) was published. In the case at hand, the existing structure was no longer effective for the applicant, which is why they decided to acquire two group entities in exchange for shares of the acquiring company. The transaction aimed at simplifying the ownership structure, along with management and control processes, as well as improving credit capacity and solvency, enabling better use of assets and human resources, and limiting administrative costs. According to the Head of the National Revenue Administration, deriving a tax benefit from such a transaction would not be the primary or one of the primary purposes behind performing it, nor would it go against the subject or purpose of tax law or its provision, while the action described by the applicant would not be deemed of artificial character. Consequently, Article 119(1) of the Tax Code finds no application.
Production version of KSeF Taxpayer app now available
On 17 May 2022, a production version of the KSeF (National e-Invoicing System, Polish: Krajowy System e-Faktur) taxpayer application was launched by the Ministry of Finance. Taxpayers may use it, inter alia to, issue, receive, and preview invoices. The application can be found at podatki.gov.pl. To use it, a taxpayer must first authenticate, by means of a qualified electronic signature (individuals), a qualified electronic seal (other entities) or a Trusted Profile. Each invoice issued in the production environment and sent to the KSeF is deemed entered into legal circulation.
Failure to specify the value of tangible property or property rights upon sale and the capital duty
In its ruling dated 12 May 2022 (case file III FSK 3366/21), the Supreme Administrative Court found that where a taxpayer entering into a civil law transaction, as a result of which transfer of ownership took place, failed to specify the value of tangible property or property rights to which different tax rates apply, the total value of such tangible property or property rights shall be subject to a 2% capital duty. Pursuant to Article 7(3)(1) of the Capital Duty Act, to apply a reduced rate to a portion of tangible property or property rights, the value thereof should be specified upon sale. Therefore, it cannot be assumed that the condition of specifying the value by the taxpayer has been met through distinction made in the balance sheet (prepared once the civil law transaction has been finalized) or in the submitted PCC-3 return. This is because none of the above actions can be classified as an activity as a result of which transfer of ownership took place.
Overpayment refund only for a taxpayer
In its ruling dated 11 May 2022 (case file III FSK 4696/21), the Supreme Administrative Court ruled on the issue of reimbursement of overpayment made to an entity that is not a taxpayer. The case at hand related to a company that paid tax on structures situated in the land it leased. Subsequently, the company stated that the structures are permanently affixed to the land and as such cannot be treated as a component of real estate under the Polish Civil Code. Consequently, the company demanded a refund of the real estate tax paid on the said structures. The competent mayor argued, however, that if the structures are permanently affixed to the land (under Article 191 of the Civil Code), this means that they do not belong to the company, but to the land’s owner. As a result, the company cannot apply for a refund of the overpaid tax, since in this case it is not a taxpayer and paying the tax was not its duty, but the duty of the land’s owner. The Regional Administrative Court and the Supreme Administrative court have reached the same conclusion.
Contractual penalties for withdrawal in the context of VAT
In its ruling dated 11 May 2022 (case file I FSK 1627/18), the Supreme Administrative Court held that the amount paid by a counterparty for failure to collect and pay for the goods should be treated as contractual compensation not subject to VAT. The case at hand related to a company entering into contracts including special safeguard clauses in case the counterparty failed to collect the goods within the agreed time limits. In such a case, the company was entitled to sell the non-collected goods to a different purchaser. Where the goods were sold at a lower price, the original buyer had to cover the difference between the actual - lower - sales price, and the contractual - higher - price, including all associated costs of non-collection. In the company’s opinion, this kind of true-up was a form of compensation for the damage incurred and as such should not be subject to VAT. Tax authorities challenged the company’s stance, yet it was shared by the RAC and SAC.
No possibility to deduct business losses in past years when determining basis for solidarity levy
In its ruling dated 13 May 2022 (case file I SA/Bk 106/22), the Regional Administrative court in Białystok stated that when determining the accounting basis for calculating the solidarity levy, total income subject to the levy can be deducted solely by social security contributions, pursuant to Article 26(1)(2 to 2a) of the PIT Act, and amounts listed in Article 30f(5) thereof, as it directly follows from Article 30h(2) of the PIT Act. This means that when calculating the accounting basis for the solidarity levy, losses form past years cannot be considered, as they are not referred to by Article 30h(2) of the PIT Act. This is another ruling of the Provincial Administrative Court on this subject, unfavourable for taxpayers.
Entry into force of VAT grouping provisions postponed
The Upper House of the Polish Parliament is currently assessing the Act passed by the Sejm on 28 April 2022, amending some acts in order to automate the handling of certain matters by the National Revenue Administration. The Act provides for postponing the entry into force of provisions on VAT grouping until 1 January 2023. It should be noted that the Polish Deal provisions in this regard assumed that VAT groups could be formed as early as starting from 1 July 2022.