KPMG Weekly Tax Review 03 JUL - 10 JUL 2023

On 05 July 2023, a committee bill on prevention of administrative and legal barriers was submitted before the Sejm. The bill brings, inter alia, the following amendments:

• Waiver of the obligation to conclude lease contract in paper form and replacing it with documentary form;
• Reduction of VAT on children's clothing and shoes from 23% to 5%;
• Abolition of the three-year limitation of the period to use the preferential social security scheme (“Mały ZUS plus”) by entrepreneurs with the annual revenue of up to PLN 120 thousand;
• Increase of the revenue cap allowing the use lump-sum income tax scheme from EUR 2 million to EUR 3 million annually;
• Introduction of the annual - instead of monthly - income threshold making it possible to run non-registered business.

The bill is now to be assigned a document number. As per the applicable rules, the essential part of the act is to enter into force 14 days after promulgation.

In its judgment dated 04 July 2023 (case file SK 14/21), the Polish Constitutional Tribunal held Article 1a(1)(2) of the Act on Local Taxes and Duties, providing the definition of “structure”, incompatible with the Polish Constitution. The challenged provisions are to lose legal effect 18 months after publication of the judgment in the Polish Journal of Laws. During this period, the legislator is expected to enact new regulations in this regard.

The Tribunal pointed out that the challenged Article does not bring a stand-alone definition of a structure for tax purposes, yet it makes as many as two references to building law provisions, which are not in any way related to taxation. Moreover, in line with the applicable provisions it cannot be precisely determined which of the two: statutory or sub-statutory acts can be classified under construction law. Finally, according to the Tribunal, it is not admissible to use a non-tax act to regulate such essential elements of the legal construction of tax as its subject matter.

On 03 July 2023, a panel of seven judges of the Supreme Administrative Court adopted a resolution (case file II GPS 3/22) through which it settled a legal issue arising out of amendments made in May 2019 to Article 49 of the Act on procedure of administrative courts. Courts have developed two lines of interpretation. According to the first one, failure to provide PESEL [Polish Personal Identification number] is not grounds to summon the party to correct defects. In fact, the court should do so on its own, meaning that failure to provide such information does not prevent initiation of proceedings. According to the latter, however, failure to provide PESEL must be treated as a formal defect which, if not retracted, should be treated as a basis for dismissing the application. It is not the court’s duty to analyse the records. Otherwise, the parties’ rights would be in imbalance.

The Supreme Administrative Court held that failure to provide PESEL by the petitioner in a petition lodged before a Provincial Administrative Court, being the initial pleading, should be, in fact, treated as a formal defect. This means that it should be retracted in line with Article 49 of the Act on procedure of administrative courts under pain of dismissal of the petition. 

In Q1 2024, the Ministry of Finance is to launch a new mobile application facilitating real-time issue and reception of e-invoices, as part of the National e-Invoicing System (KSeF). This free tool is to enable convenient and immediate real-time issuing/receiving of e-invoices and, at the same time, managing invoices from anywhere.

According to the Ministry, taxpayers can already use the mobile KSeF application for taxpayers, via which KSeF can be accessed in terms of issuing and receiving e-invoices, previewing documents, verifying the delivery status, and downloading Official Receipt Certificates. Moreover, works on adjusting the e-Mikrofirma application to the KSeF are underway, to enable linking it to KSeF accounts, as well as issuing and receiving invoices.

Following the meeting held on 05-06 July 2023, the Monetary Policy Council declared that the NBP interest rates would remain unchanged. According to the press release, the NBP interest rates are as follows:

• reference rate at 6.75% annually
• lombard loan interest rate at 7.25% annually
• deposit rate at 6.25% annually
• rediscount rate at 6.80% annually
• discount rate on bills of exchange at 6.85% annually.

On 04 July 2023, the Council of Ministers adopted the bill on reducing irregularities in trade in certain goods and streamlining functioning of the National Revenue Administration. The key amendments provided by the bill include:

• obligation to register the places of fuel delivery to ensure security of trading in motor fuels;
• introduction of the system of licenses for dyeing and marking fuel oils and marine fuels;
• clarifying issues related to ​​entities that use fuels for their own needs, such as importers;
• transition from paper to electronic documentation stored in a single system called the Central Records of Excise Goods (CEWA).

New provisions are to enter into force 12 months after promulgation. An 18-month transition period, counted from 01 February 2024, is foreseen for implementation of CEWA by entities obliged to keep excise records.

The Ministry of Finance announced that during the present term of the Lower House of the Polish Parliament, the bill amending the Polish Tax Code would not be further processed. The bill was still under public consultation, launched on 20 June, and provided, inter alia, for differentiating fees for issuing individual rulings and limiting their validity, as well as possibility to redeem tax before it becomes due.

New DPI-FR (sales information declaration) and DPI-IS (performance information declaration) logical structures for platform operators facilitating sales were published on the website of the Ministry of Finance.
They are now put to public consultation in the context of reporting obligations for platforms brought by the bill amending the Act on the Exchange of Tax Information with other States and certain other acts. The amendments need to be implemented under EU Directive 2021/514 (DAC7) and were originally supposed to come into force in 2022. Remarks on the schemas can be submitted until 10 July 2023.