KPMG Weekly Tax Review 05 FEB - 12 FEB 2024

During a meeting held by the Ministry of Finance on 2 February 2024, an action plan related to the postponement of the entry into force of the mandatory use of the National e-Invoicing System (KSeF) was presented.

The new deadline will be revealed at the turn of April and May this year once the system audit is completed.

Before, the Ministry is to hold consultations with the market community. On 9 February 2024, the Ministry presented the schedule for consultations on legal solutions and functionalities of the National e-Invoicing System, according to which 9 meetings are planned in the period from 16 February to 1 March.

More information can be found in KPMG’s Tax Alert: Harmonogram konsultacji w sprawie Krajowego Systemu e-Faktur (KSeF).

On 5 February 2024, a bill amending the accounting act and certain other acts was added the list of legislative work and policies of the Council of Ministers.

The goal of the bill is to implement two EU directives into the Polish legal framework. The directives assume extending the list of entities under reporting obligation, unifying reporting standards and digitizing reporting, extending the scope of reported information, regulating reporting form and place, introducing assessment of sustainable development reporting, and increasing by 25% the thresholds defining individual categories of entities and specifying the obligation to audit financial statements. Additionally, the project introduces a clearer definition of micro- and small entities and the conditions for obtaining and losing the status of such entities, unification of the scope of the concept of net sales revenues and a clear statement that micro- and small entities are not to be subject to the obligation to prepare a statement of changes in capital and a cash flow statement for micro and small entities.

The bill is expected to be passed by the Council of Ministers in Q2 2024.

By decision of 6 February 2024 (case file I FSK 1382/23), the Supreme Administrative Court referred to a panel of 7 judges of the Supreme Administrative Court a legal inquiry regarding the appropriate rate of value-added tax on the delivery of take-away meals using “drive-in”, “walk-through”, “in-store”, and “food court” formulas, in line with the laws in force in Poland from 24 June 2016 to 30 June 2020.

The Provincial Administrative Court in Poznań, acting in the capacity of the court of first instance, ruled that any delivery of take-away meals should be subject to 5% VAT (case file I SA/Po 82/23). The Court relied on the CJEU judgment dated 22 April 2021 (case file C-703/19), according to which ‘restaurant and catering services’ includes the supply of food accompanied by sufficient support services intended to enable the immediate consumption of that food by the end customer; where the end customer chooses not to benefit from the material and human resources made available by the taxable person to accompany the consumption of the food supplied, it must be concluded that no support services accompany the supply of that food.

On 6 February 2024, the Supreme Administrative Court ruled in case II FSK 608/21 that “eligible costs” encompass all costs of fixed assets making up a new establishment.

This means that when a new establishment is created, when calculating the amount of tax exemption for a new investment project, expenses for the office, administrative and social space, office equipment, space development, parking lots, access roads, etc. are also considered.

On 7 February 2024, a draft Regulation of the Minister of Development Funds and Regional Policy on granting de minimis aid within the frames of 2021-2027 regional aid programs was published on the Government Legislation Centre’s website.

It is to replace the corresponding regulation of 29 September 2022, under which de minimis aid can be granted until 30 June 2024.

The proposed regulation implements the provisions of Commission Regulation (EU) 2023/2831 of 13 December 2023 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid (OJ L, 15.12.2023) and provides a legal basis for granting businesses de minimis aid within the frames of 2021-2027 regional aid programs, excluding de minimis aid under the European Social Fund Plus, until 31 December 2029.

During the meeting of the Monetary Policy Council held on 6-7 February 2024, it was 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.

Changes to the reference rate affect other financial parameters, e.g., the amount of interest on tax arrears. Given that the rates remain unchanged, interest on tax arrears continues to amount to 14.5% on an annual basis.

By 20 February 2024 each business owner must decide which form of taxation they are to apply. This date is determined by the passing deadline for sending the DRA declaration to ZUS, because contributions must be in accordance with the selected form of taxation. The currently available forms of taxation are: taxation in line with general principles, flat-rate tax, and lump-sum tax on recorded revenues.