KPMG Weekly Tax Review 12 FEB - 19 FEB 2024

The Ministry of Finance published a list of questions and answers regarding the National e-Invoicing System (KSeF). The list contains over 100 questions and answers grouped into such categories as: 2024 consultations, competences, authorization, structure (construction), sending, issuing invoices, KSeF obligation, and technical issues. Moreover, on 16 February 2024, a series of consultations was launched, ending on 1 March 2024. The questions and answers (in Polish) can be accessed here.

The bill amending the Act on the Exchange of Tax Information with other States and certain other acts, implementing bills, explanatory memorandum thereto and an assessment of the act’s impact were published on 13 February 2024.

The bill implements the provisions of the DAC7 directive (which should have been implemented by the end of 2022) and serves as a tool for performing the obligation imposed on Member States to obtain information on taxable persons drawing income from the provision of services and the sale of goods via digital platforms.

The Act is expected to enter into force on 1 July 2024, yet some of the new regulations are to have effect on entities that at any time in the period from 1 January 2023 to 30 June 2024 met the conditions for being recognized as a reporting platform operator. 

On 12 February 2024, it was announced that the Head of the National Revenue Administration issued a clearance opinion (case file DKP3.8082.5.2023) on establishing a family foundation, making an in-kind contribution to it, business activity performed by that foundation and performances rendered to the foundation's beneficiaries. According to the Head of the National Revenue Administration, although obtaining a tax benefit is the primary or one of the primary purposes behind performing the transaction, where the tax benefit would take form of non-occurrence of a tax liability under the PIT Act and the Inheritance and Donation Tax Act for the Applicants on account of the performances received form the family foundation, the activity described cannot be deemed artificial in nature and the possible tax benefit does not go against the subject or purpose of the tax act or its provisions, which means that Article 119a(1) of the Polish Tax Code finds no application and there are no obstacle to issuing a clearance opinion.

In its judgment dated 14 February 2024 (case file II FSK 669/21), the Supreme Administrative Court ruled that in the light of Article 24b(1) of the CIT Act, in its wording applicable as of 1 January 2019, the notion of income from real estate sale (disposal) indicated in the aforementioned regulation cannot be treated as “income from real estate” as referred to in Article 17(1)(57)(g) of the CIT Act. As a result, a fund’s income from commercial real estate disposal will be CIT-free.

In its judgment dated 13 February 2024 (case file II FSK 666/21), the Supreme Administrative Court ruled that Article 23(1)(19) of the PIT Act is precise, understandable and unambiguous, meaning that it should be understood literally. Consequently, if the legislator limits the category of damages excluded from tax-deductible costs only to defects of the goods delivered, this means that the liquidated damages for defects in security, packaging and delivery of goods may be included in tax-deductible costs, provided that they meet general conditions set forth by Article 22(1) of the PIT Act.

In its judgment dated 13 February 2024 (case file II FSK 796/22), the Supreme Administrative Court ruled that statutory sources of revenue cannot collide, nor can they completely or partially overlap, which is why in the case at hand it was to be examined whether revenue from trademark lease should be treated as revenue from lease or revenue from capital gains. The Court ruled that Article 10(1)(6 and 7) of the PIT Act should be interpreted as stipulating that revenue from lease should always be treated as revenue from lease, regardless of the item leased. 

PIT returns for 2023 can be filed from 15 February to 30 April 2024. During a press conference, the Head of the National Revenue Administration stressed that the filing deadline would not be postponed. To submit the returns, taxable person can use the e-PIT service. Importantly, this year, for the first time, the Twój e-PIT service will also be available to individuals running businesses and operating in special branches of agricultural production. Apart PIT-37 and PIT-38 forms, as well as PIT-OP and PIT-DZ declarations, the portal now offers three new forms, namely: PIT-36L, PIT-28 and PIT-36.