KPMG Weekly Tax Review 06 NOV - 13 NOV 2023

On 9 November 2023, the Ministry of Finance announced the launch of tax consultations on CIT-8, CIT-8/O, CIT-D, CIT/BR, CIT/IP, CIT/M, CIT/KW, CIT/8S and CIT/8SP form templates. The consultation process ended on 14 November 2023. In turn, the consultations which ended on 13 November 2023 related to:

• CIT-8FR(1) – return on income (revenue) obtained and tax due on family foundation revenues. The form is submitted by family foundations and family foundations in the process of formation;
• CIT/F(1) – Information on income (revenue) from business activities pursued by a family foundation outside the scope of Article 5 of the Act on Family Foundations and CIT due. The form constitutes attachment to CIT-8 return and is submitted by family foundations and family foundations in the process of formation. It is due from family foundations to which Article 24r of the CIT Act applies.

On 31 October 2023 the European Commission published the latest version of the Combined Nomenclature applicable as from 1 January 2024. The Combined Nomenclature (CN) is the EU's eight-digit coding system, comprising the Harmonised System (HS) codes with further EU subdivisions. It serves the EU's common customs tariff and provides statistics for trade within the EU and between the EU and the rest of the world. The Combined Nomenclature was established by Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. It is updated every year and is published as a Commission Implementing Regulation in the Official Journal of the European Union, L Series. The latest version is now available as Commission Implementing Regulation (EU) 2023/2364 in EU Official Journal 2023/2364 L series of 31 October 2023.

During the meeting held on 7-8 November 2023, the Monetary Policy Council decided to keep the NBP interest rates unchanged, i.e.:

• reference rate at 5.75% annually
• Lombard loan interest rate at 6.25% annually
• deposit rate at 5.25% annually
• rediscount rate at 5.80% annually
• discount rate on bills of exchange at 5.85% annually.

The reference rate has influence on other financial parameters, e.g., the amount of interest on tax arrears (200% of the basic Lombard loan interest rate + 2%, except that the rate may not be lower than 8%), which continues to amount to 14.5% on an annual basis.

The draft regulation of the Minister of Finance on extending the deadlines for submitting transfer pricing information was published on 3 November 2023. It is to extend the deadline for submitting TPR-P and TPR-C forms (transfer pricing):

• until 29 February 2024 – for reporting periods ending between 1 January 2023 and 30 November 2023
• by 3 months – for reporting periods ending between 1 December 2023 and 31 March 2024.

In turn, on 30 October 2023, new versions of TPR-P and TPR-C forms were made available on the website of the Ministry of Finance. As expected, the form is now accessible online and not in the form of an interactive .pdf file as in the previous years.

On 7 November 2023, a generator of applications for an individual ruling was made available by the National Revenue Administration.

It can be used to generate and fill in the application, providing useful tips in the process.

The generator can be only used to make ORD-IN applications. The final application can be singed electronically and sent:

• via electronic registry inbox to “ePUAP/KIS/wnioski” address,
• as an attachment to a notice via e-Tax Office.

The ORD-IN application can be also printed out, signed and sent in a traditional manner to the National Revenue Information Service.

On 8 November 2023, the Regional Administrative Court rendered judgment in case III SA/Wa 1310/23 brought by a company offering EV charging services. The company wanted to use roaming services to enable mutual sharing of charges between cooperating parties to their clients’ benefit. It was not sure, however, how it should establish the place of supply for the supplies of electricity made to its foreign partners.

According to the Court, the tax authority's position that the place of taxation of the transaction involving the sale of electricity to foreign partners should be determined pursuant to Article 22(1)(3) of the VAT Act and, consequently, the sale of electricity should be taxed in Poland, shall be deemed unfounded. Article 38 of Directive 112 provides for an exception when it comes to determining the place of supply of services and clearly indicates that in this case supplies are made to a taxable dealer, as defined in section 2 thereof. Importantly, Directive 112, but also the Polish VAT Act, give no requirement for electricity to be transported outside Poland. As a result, supplies of electricity to foreign partners are not taxable in Poland. 

On 8 November 2023, the Regional Administrative Court in Warsaw rendered judgment in case III SA/Wa 1529/23 relating to a company owning the rights to the group’s logo, which, to promote the logo, concluded sponsorship agreements with various entities. In some cases, remuneration paid by the company will be treated as tax-deductible costs borne to carry out activities specified in Article 18ee(1) of the CIT Act. The company wanted to know whether it could benefit from a tax relief and deduct from the taxable base an amount equal to 50% of tax-deductible costs allocated to the “capital gains” source of revenue, up to the amount not exceeding the income earned by the company from revenue other than revenue from capital gains.

The Court noted that Article 18ee(1) of the CIT Act refers to revenue other than revenue from capital gains to highlight that the relief can be applied by a taxable person who earns such revenue and the revenue from this source is the principal amount subject to deduction. The possibility of applying the sponsorship relief to both sources of revenue and the possibility of using it regardless of the source of revenue in which the sponsorship costs were recognized is consistent with the legislator's intention because it increases the attractiveness of the relief.