KPMG Weekly Tax Review 30 OCT - 06 NOV 2023

By decision dated 30 October 2023, the Head of the National Revenue Administration (NRI) denied clearance opinion in case DKP3.8082.14.2022. The case related to converting a board member’s employment contract into a B2B contract for analytics and advisory services. The Head of NRI stated that the applicant’s activities were artificial in nature, had the sole purpose of obtaining financial benefits against the object or the purpose of the PIT Act, and were in breach with Article 13(7;9) and Article 12(1) thereof.

In its judgment dated 27 October 2023 (case file no. III FSK 560/23), the Supreme Administrative Court settled, whether, in view of the provisions of the Act on Local Taxes and Duties and the Building Law, cableways and T-bar ski lifts should be treated as building objects or only parts thereof, namely foundations and supports, should be treated that way.

According to the Court, in the schedule to the Building Law, cableways are not divided into structural and non-structural parts, as is the case, for example, with wind farms, therefore the entire cableway and ski lift, and not their selective elements, should be considered structures within the meaning of the tax act.

On 30 October 2023, in case no. III FPS 2/23, the Supreme Administrative Court (SAC) was to determine whether the members of the management board could be held liable for failing to file a bankruptcy petition in due time, in a situation where during their term of office it had not been demonstrated that company's tax arrears were their fault.

The Court refused to do so, explaining that the presented legal issue did not qualify for resolution by an extended panel of judges. Judge Jan Rudowski noted that in a situation like this, the resolution must relate to a specified case and claims presented in the cassation appeal. Moreover, the SAC found that this was not an issue that should be resolved through legislation but should be considered by a panel of three judges in the context of specific factual circumstances and collected evidence.

As a result, the Court denied a resolution, yet the case is to return to the docket for further examination by a panel of three judges.

On 30 October 2023, a panel of seven judges of the Supreme Administrative Court adopted a resolution in case III FPS 1/23, in line with which, in the view of Article 149(1-3), in conjunction with Article 283(1) of the Act of Enforcement Officers of 22 March 2018, all enforcement fees collected starting from 1 January 2019, including those under the Act on Enforcement Officers and Enforcement proceedings of 29 August 1997, shall be treated as public levies. The scope of non-tax budgetary receivables defined this way excludes enforcement fees that were determined as final and binding before 1 January 2019.

On 30 October 2023, a notice of the Minister of Finance dated 26 October 2023 was published in the Polish Official Gazette. The notice relates to publishing the record of countries and territories entered on the EU list of non-cooperative jurisdictions for tax purposes, currently being adopted by the European Council, which have not been included in the list of countries and territories applying harmful tax competition issued on the basis of the Polish provisions on personal income tax and the provisions on corporate income tax, including the date of adoption of the record by the Council.

Compared to the notice dated 27 February 2023, Costa Rica was removed from the list and Belize was added.

Interactive forms for new TPR-C(5) and TPR-P(5) electronic templates are now available on the Tax Portal. They can be applied on a voluntary basis, but when using one’s own tools one must remember to adhere to the requirements published in the Public Information Bulletin. In the meantime, works on a draft regulation of the Minister of Finance on extending the deadlines for submitting transfer pricing information are still underway.

According to the judgment of the Supreme Administrative Court dated 27 October 2023 (case file no. II FSK 362/21), under Article 24b(3) of the CIT Act (establishing the basis of a fixed asset), the basis of fixed assets for the purposes of the minimum tax shall not be reduced by depreciation write-downs made. Thus, the Court dismissed the taxpayer’s cassation appeal. 

In line with the regulation of 24 October 2023 amending the regulation on granting the competence of examination of certain cases falling within the cognizance of the Director of the National Revenue Information Service, the President of the Polish Social Insurance Institution, and the President of the Agricultural Social Insurance Fund to other provincial administrative courts, the President of Poland vested the task of examining complaints related to binding tax, excise, duty, tariff and origin information in the Regional Administrative Court in Opole. Any action brought before the entry into force of the amended regulation will also be examined by the Court in Opole. The regulation enters into force on 14 November 2023.