KPMG Weekly Tax Review 20 MAY - 27 MAY 2024

During the sittings held on 22-23 May 2024, the Upper and the Lower House of the Polish Parliament assessed a raft of substantial acts.

The Senate passed unamended, inter alia, the Act amending the Act on Value-Added Tax and certain other acts, postponing implementation of the mandatory use of KSeF until 1 February 2026, the Act amending the National Revenue Administration Act and certain other acts, which adopts Polish law to EU regulations on obligations for importers of tin, tantalum, tungsten (and their ores), and gold, as well as the Act amending the Act on the Social Insurance System and certain other acts introducing a solution commonly referred to as “contribution holiday”. The Acts are now to be submitted before the President.

Act amending the Value-Added Tax Act

Act amending the National Revenue Administration Act and certain other acts

Act amending the Act on the Social Insurance System and certain other acts

In turn, the Senate passed the Act amending the Act on the Exchange of Tax Information with other States and certain other acts, implementing the provisions of the Council Directive (EU) 2021/514 of 22 March 2021 amending Directive 2011/16/EU on administrative cooperation in the field of taxation (commonly referred to as DAC7 directive), obliging platform operators from EU Member States to collect data on specific sellers and transactions concluded via these platforms and to provide it to tax authorities, as well as the Act on the whistleblower protection, implementing a directive of the European Parliament and of the Council, which aims to improve the enforcement of EU laws and policies in specific areas by establishing common minimum standards to ensure an adequate level of protection for individuals reporting breaches of Union law.

Act amending the Act on the Exchange of Tax Information with other States and certain other acts

Act on the Whistleblower Protection

On 22 May 2024, a meeting of the Standing Sub-Committee on Entrepreneurship was held to present information on the activities to be carried out by the Minister of Finance to harmonize general rulings, ensure authorities' compliance with CJEU rulings favourable to taxpayers, and on the actions taken by the government in the context of the implementation of EU law.

During the meeting, the Head of the Tax System Department at the Ministry of Finance stated, inter alia, that in 2023, ca. 24 thousand individual rulings were issued, out of which ca. 25% were negative and only 6% were appealed against (about 1,300 cases), there is a tendency at the Ministry of Finance to issue more general rulings, and that the National Revenue Information Service made about 2 million phone calls, participated in more than 116,000 chats and answered almost 100,000 e-mails.

On 20 May 2024, the Minister of Finance issued a general ruling regarding VAT taxation of performances consisting in the transfer of knowledge by natural persons (lecturers, individuals holding classes, courses and trainings, hereinafter: lecturers) who are VAT payers, under contracts concluded with universities, as part of the educational processes managed by these universities.

According to the Minister of Finance, the services consisting in sharing knowledge by lecturers being VAT payers, rendered under contracts concluded with universities as part of the educational processes managed by these universities, shall not be subject to exemptions provided for by Article 43(1)(26, 27, and 29) of the Value-Added Tax and by Article 3(1)(13) of the regulation of the Minister of Finance of 20 December 2013 on the exemptions from the value-added tax and the conditions for using these exemptions.

On 20 May 2024, it was announced that the Head of the National Revenue Administration issued a clearance opinion dated 15 March 2024 (case file DKP1.8082.3.2023) on converting sp. k. (Polish limited partnership) into sp. z o. o. (Polish private limited company), voluntary redemption of shares, and opting for the Estonian CIT taxation scheme.

The Head of the National Revenue Administration found that even though, based on the described facts, tax benefits can be identified and obtaining them is one of the primary purposes behind performing the transaction, there were no reasons to assume that the tax benefits indicated in the application would be contrary to the subject or purpose of tax law or any of its provisions and that the actions taken by the taxpayer cannot be deemed artificial in nature.

Consequently, in line with Article 119y(1) in conjunction with Article 119a(1) of the Polish Tax Code, the Head of the National Revenue Administration issued a clearance opinion.

On 20 May 2024, the bill amending certain acts related to granting de minimis aid was added to the list of legislative work and policies of the Council of Ministers. 

The bill brings amendments to a number of acts, consisting in updating references to the currently applicable Commission Regulations on granting de minimis aid and adjusting to the current regulations the period for which de minimis aid certificates or declarations should be presented.

According to the ruling of the Supreme Administrative Court dated 22 May 2024 (case file I FSK 1409/20), in the situation of purchase of construction materials in Poland, which are then transferred to Slovakia to be used in activities there performed, a transfer of own goods from Poland to Slovakia takes place. Consequently, this activity should be treated as ICS in the territory of Poland.

According to the judgment of the Regional Administrative Court in Warsaw dated 23 May 2024 (case file III SA/Wa 746/24), the condition of issuing an invoice to take advantage of the bad debt relief follows from the wording of Article 89a(2)(5) of the VAT Act and is not contrary to EU law. Citing the CJEU ruling of 15 May 2014 in Case C-337/13 (Almos), the Regional Administrative Court in Warsaw explained that in line with Article 273 of Directive 112, Member States may impose such obligations as they deem necessary to ensure the correct collection of VAT and to prevent tax fraud, provided, among other things, that this possibility is not used to impose additional invoicing obligations. Given both the content of this ruling and the general function VAT invoices perform in the Polish VAT system, issuing an invoice when the service was actually performed cannot be treated as a supplementary obligation.