KPMG Weekly Tax Review 24 JUN - 01 JUL 2024

On 1 July 2024, a raft of important amendments entered into force. The key changes include:

• introducing 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, implementing the provisions of the DAC7 directive into the Polish law and imposing a number of new obligations on digital platform operators
• increasing the minimum remuneration for work to PLN 4,300 and the minimum hourly rate to PLN 28.10; consequently, the accounting basis for social security contributions will change, inter alia, for individuals running non-agricultural business activity under provisions on business activity or other special provisions that begin pursuing such activities ( Article 18a of the Act on Social Insurance System)
• changes in terms of letters regarding Binding Tariff Information (BTI), Binding Origin Information (BOI), Binding Excise Information (BEI), and Binding Rate Information (BRI); such documents are now to be submitted exclusively online, via e-Tax Office or PUESC (Electronic Services Portal of the Customs Service) account; any other form of submission will be deemed ineffective
• changes related to tax scheme reporting (MDR) compliance, imposing additional tax scheme reporting requirements on promoters and supporters. For example, a promoter and a supporter providing information on the tax scheme will be required to provide, in writing, information on the collection, processing and transfer of information to the individual to whom the information on the tax scheme relates. 

On 25 June 2024, a draft bill amending the Value-Added Tax Act and certain other acts was published on the Government Legislation Center’s website.

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. Importantly, the amendment specifies the place of performance for certain online services. 

On 25 June 2024, a bill amending the Tax Code and the Fiscal Criminal Code was submitted before the Lower House of the Polish Parliament.

The bill’s authors propose, among other things, to shorten the statute of limitations for tax liabilities to three years from the end of the taxable year in which the tax payment deadline expired, to maintain a five-year statute of limitations for tax liabilities worth at least PLN 1 million, and to exclude the suspension of the running of the statute of limitations for tax liabilities as a result of the initiation of fiscal criminal proceedings.

On 25 June 2024, the Head of the National Revenue Information Service admitted the entire complaint against the individual rulings issued on 30 April 2024 (case files 0112-KDIL2-1.4011.114.2024.3.JK and 0112-KDIL2-1.4011.113.2024.3.JK). In the rulings complained against, the Head of the National Revenue Information Service held that the payments made to spouses-founders would not be, in their entirety, exempt from personal income tax.

The tax authority admitted the complaint and stated that the position of spouses-founders who lodged the complaint was correct, noting that the payments made by the family foundation to their benefit will be entirely covered by the objective exemption under Article 21(1)(157) of the PIT Act.

On 24 June 2024, the bench of seven judges of the Supreme Administrative Court (case file I FSK 1661/20) rendered a judgment by which it overturned the disputed judgment of the first instance court (case file I SA/Sz 441/20) and dismissed the taxpayer’s complaint.

According to the Court, assignment of rights and obligations under a property development contract against a buy-out payment, in situation where the assignor has no right to dispose of the residential premises as owner, shall constitute a taxable transaction, qualifying as service provision under Article 8(1) in conjunction with Article 5(1)(1) in fine of the VAT Act and not as delivery of goods within the meaning of Article 7(1) in conjunction with Article 5(1)(1) ab initio thereof. As a result, in such cases, provision of residential premises shall be subject to the regular VAT rate of 23%, instead of the reduced 8% rate.

On 24 June 2024, the Supreme Administrative Court passed a resolution, case file I FPS 1/24, to settle a legal issue raising important doubts among taxpayers. According to the resolution, in the legal and factual situation existing between 24 June 2016 and 30 June 2020, the activity consisting in the delivery of meals and dishes performed by taxpayers using the “drive-in”, “walk-through”, “in-store” and “food court” formulas (in situations where meals and dishes are provided as takeaway) shall be subject to a preferential 5% rate, under Article 41(2a) of the VAT Act, in conjunction with item 28 of Schedule 10 thereto.

According to the judgment of the Supreme Administrative court dated 25 June 2024 (case file II FSK 1278/21), amounts received by the employees of chambers of crafts and trades holding managerial positions, in reimbursement of the costs of using private vehicles for local transportation, in accordance with the provisions of the contracts concluded, in order to perform official tasks commissioned by the chamber, constitute the employees' revenue referred to in Article 12(1) of the PIT Act. This revenue cannot be subject to objective exemption provided under Article 2(1)(23b) thereof, since the Act on Crafts and Trades does not stipulate that that chamber employees are entitled to reimbursement from the chamber employing them for the use of a private car for business purposes. 

According to the judgment of the Regional Administrative Court in Gliwice dated 24 June 2024 (case file I SA/Gl 1679/23), an employee engaged in Poland by a German entity (being a German tax resident) in a remote working system cannot be treated as a permanent establishment nor as a dependent agent acting on behalf of the German company. In fact, the employee can render work in any place possible, e.g., in their apartment, at the company’s headquarters in Germany or on the clients’ premises, while the German company does not rent any premises in Poland. The mere fact of equipping the employee with a laptop, a mobile phone or a colorimeter does not create any link with the geographical point that could lead to creating a fixed establishment in Poland.