KPMG Weekly Tax Review 22 JAN - 29 JAN 2024

On 23 January 2024, the Ministry of Finance issued a notice regarding the method of submitting Transfer Pricing Information (TPR form) for a taxable year starting after 31 December 2021 for acquired entities,

according to which, an acquiring entity filling version 5 of the TPR form for an acquired entity must submit it to the Head of the Tax Office competent for its seat. In section B of the form the acquiring entity must provide its details. Next, in sections C, D and F, the acquiring entity should identify the acquired entity, and in section A it must specify the Head of the Tax Office competent for its seat, including the period and the purpose related to the acquired entity. Finally, in section E (additional information), the acquiring entity should write the following: TPR form submitted for the acquired entity. NIP [Polish Tax Identification Number] should be written as a sequence of digits. Such a TPR form should be signed by the acquiring entity.

On 24 January 2024 (case file II FSK 1937/23), the Supreme Administrative Court ruled that sub-license receivables should be treated as revenue from capital gains. To classify them in such a way, it does not matter whether the marks constitute amortizable intangible assets.

According to the oral grounds for the judgment, whether something can be treated as revenue from capital gains depends on its objective nature. Such a classification does is not in any way contingent on whether a person subjects the asset to amortization or not.

On 18 January 2024, the Supreme Administrative Court rendered a landmark judgment in case II FSK 435/21 related to taxation of refunds from the Employee Capital Plans (ECP).

ECP Participants can apply for a refund of funds also before reaching the age of 60. Such refunds, however, are subject to income tax. So far, however, there have been no clear rules on how to determine the costs of such withdrawals. Initially, it was assumed that all ECP contributions made by employees, employers, and the Labour Fund should all be treated as costs. Tax authorities, however, were of the opinion that only ECP contributions made by employees should be considered costs. Eventually, the Court sided with the Fund and ruled that all payments made are costs.

On 22 January 2024, it was announced that on 29 November 2023 the Head of the National Revenue Administration issued a clearance opinion regarding withdrawal of a limited partner from a limited partnership and converting that limited partnership to a private limited company, which is to apply the lump-sum tax on corporate income scheme (case file DKP1.8082.2.2023).

The assessed activities included transforming a general partner into the limited partner, withdrawal of a private limited company from the limited partnership without remuneration, re-assessment of the share in profits and loss of the limited partnership, converting the limited partnership to a private limited company and covering that private limited company with the Estonian CIT scheme.

The Head of the National Revenue Administration admitted that even though the restructuring would bring tax benefits, the activities carried out are not artificial in nature nor do they go against the purpose or object of the tax act. 

On 22 January 2024, it was announced that the Head of the National Revenue Administration issued a clearance opinion on share swapping (case file DKP2.8082.4.2023).

The opinion related to a situation where Applicant 1 made a capital injection to its related Company (Applicant 2) through contributing the majority of shares held in Company B in exchange of shares of Applicant 2. Next, Applicant 2 disposed of some shares in Company B. Some of the shares were contributed in kind to another company (Company X) and some of the shares that were to be sold were also contributed in kind to Company X in exchange for its shares. The main purpose behind these activities was to make a capital injection to Applicant 2, to cover its liabilities, to develop its real estate activities, and to contain legal and economic risks.

The Head of the National Revenue Administration stated that there is an economic and business rationale behind the activities performed, which includes, among others, development of investments and reducing several liability of Applicant 1. The Head of the National Revenue Administration concluded that in these circumstances Article 119a(1) of the Polish Tax Code does not apply and, consequently, issued a clearance opinion.

The National Fund for Environmental Protection and Water Management has launched public consultation on a new priority aid scheme consisting in providing assistance in the purchase of zero-emission N2 (vehicles designed and used for the carriage of goods, having a maximum mass exceeding 3.5 tonnes but not exceeding 12 tonne) and N3 vehicles (vehicles designed and used for the carriage of goods, having a maximum mass exceeding 12 tonnes).The scheme is available from 2024 to 2029. Applications will be accepted from 2024 to 2028 on a continuous basis or until the funds are exhausted. The manner the applications are to be submitted and assessed will be specified in the relevant documentation made available on the website of the National Fund for Environmental Protection and Water Management.

On 25 January 2024, the CJEU rendered a judgment in case C-334/22: request for a preliminary ruling from the Regional Court in Warsaw.

The Court ruled that without the consent of the manufacturer of motor vehicles which is the proprietor of an EU trademark, a third party who offers for sale spare parts (namely radiator grilles) containing the emblem the shape of which is identical with, or similar to, that trademark, affects the functions of that trademark, which is a matter for the national court to ascertain. In accordance with EU regulations, the manufacturer has the right to prohibit the use of an identical mark for spare parts, even if it is technically possible to attach the emblem to a given part without additional marking.