KPMG Weekly Tax Review 10 JUN - 17 JUN 2024

During the session held on 14 June 2024, the Lower House of the Polish Parliament passed amendments to the Act on whistleblowers. The Sejm decided to exclude labour law infringements from the list of violations that can be reported by whistleblowers and, consequently, are covered by protection against retaliation. The amended act now awaits the President’s signature. 

On 11 June 2024, it was announced that the Head of the National Revenue Administration published a clearance opinion dated 16 May 2024 (case file DKP1.8082.5.2023) regarding joint settlement of taxable income by companies forming a single tax group.

According to the Head of the National Revenue Administration, even though a tax benefit in the form of reduced taxable income (or increased loss) within a tax group can be identified and the attaining a tax benefit was one of the primary purposes of the actions performed, the tax benefit obtained is not contrary to the subject or purpose of tax law or any of its provisions. 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 11 June 2024, a draft regulation of the Minister of Finance on guarantee deposits made by platform operators was published on the Government Legislation Centre’s website.

The purpose of the proposed regulation is to adjust the legal status to the provisions of the Act of 23 May 2024, amending the Act on the Exchange of Tax Information with other States and certain other acts.

The regulation sets forth the rules and the method of making, accepting and returning guarantee deposits. It is expected to enter into force on 1 July 2024.

On 12 June 2024, preliminary paper on the bill amending the Value-Added Tax Act and certain other acts was added the list of legislative works and policies of the Council of Ministers. Under the bill, small enterprises with the seat in a Member State other than Poland will be able to enjoy VAT exemption. Moreover, Polish small enterprises will be able to use VAT exemption in other Member States. Additionally, the bill provides for new rules of determining the place of service provisions for online services. 

On 11 June 2024, the bill amending the Act on the Agricultural Tax, the Act on the Local Taxes and Duties, the Act on the Forest Tax, and the Act on the Stamp Duty was added to the list of legislative work and policies of the Council of Ministers. The key amendments it is to bring consist in introducing standalone definitions of “non-building structure” and “building” excluding references to non-tax regulations as well as enumerating the categories of structures qualified as non-building structures in the tax act (in form of a schedule to the act) . The bill will be developed by the Ministry of Finance and its adoption by the Council of Ministers is scheduled for Q3 2024.

According to the judgment of the Regional Administrative Court in Wrocław dated 12 June 2024 (case file I SA/Wr 121/24), the similarity to commercial companies as referred to in Article 5(1)(3) of the Act on Family Foundations may be demonstrated by various characteristics of the company. These characteristics need not be identical; rather, a certain set or group of features should be common. The fact that comparable entities differ in some characteristic, as a general rule, does not preclude the existence of similarity between them. In the case under consideration, the authority did not provide a convincing justification for concluding that the decisive criterion for assessing whether an entity is similar in nature to a commercial company within the meaning of Article 5(1)(3) of the Law on Family Foundations is solely the tax similarity, which, in the authority's view, stems from the fact of being subject to CIT.

Furthermore, in its judgment of 12 June 2024 (case file I SA/Wr 153/24), the Regional Administrative Court in Wroclaw stated that participation rights are securities, and by virtue of Article 5(1)(4) of the Law on Family Foundations, the foundation may engage in economic activities involving the acquisition and disposal of securities. Therefore, the acquisition and disposal of the aforementioned participation rights fall within the scope defined by Article 5(1)(4) thereof. Such activities are covered by a tax exemption under Article 6(1)(25)of the CIT Act. 

According to the judgment of the Supreme Administrative Court dated 11 June 2024 (case file II FSK 1190/21), student dormitories, to the extent they satisfy housing needs of students, doctoral students, and interns throughout the academic year, in which places are allocated by decision, are not subject to taxation under Article 24b of the CIT Act, because the relationship between the university and the students in terms of providing them with a place in the student dormitory is not a rental contract or a contract of a similar nature.

On 14 June 2024, a bill amending the Polish Tax Code and certain other acts was published on the Government Legislation Centre’s website. The proposed amendments relate, inter alia, to Article 12(6)(2) of the Polish Tax Code and consist in introducing assumption that the time limit is observed for the following letters:

• letters submitted to tax authorities via any postal operator within the meaning of the Postal Law, and any entity engaged in the delivery of correspondence within the territory of a European Union member state other than the Republic of Poland,
• letters received by any postal operator within the meaning of the Postal Law after being posted in a country outside the European Union.

Moreover, the bill is to repeal Article 78(5) of the Tax Code, which conditions the right to interest on a tax overpayment resulting from the Court ruling upon the submission of a refund request within a specified deadline.