KPMG Weekly Tax Review 01 JUL - 08 JUL 2024

Following an increase in the minimum wage starting from 1 July 2024, the amounts of penalties for fiscal crimes and offenses changed. In the second half of 2024, a fiscal offense is punishable by a fine of PLN 430 to PLN 86,000. In turn, a maximum fine under a penalty notice is PLN 21,500. Finally, fiscal crimes committed are subject to a fine not lower than PLN 1,433.40, with the maximum amount thereof being PLN 41,281,920.

A draft regulation of the Minister of Finance on models of a special power of attorney and a power of attorney for service, along with templates for notice of changing, revoking or terminating such powers attorney was published on the Government Legislation Centre’s website. The amendments proposed include, inter alia, removing the “Post office” and “Fax” fields, removing the tax portal as a form of communication with tax authorities, changing two explanatory notes to the form and introducing other adjusting, simplifying, and technical changes. The draft regulation can be found at: https://legislacja.rcl.gov.pl/projekt/12386900

On 2 July 2024, it was announced that the Head of the National Revenue Administration refused to issue a clearance opinion dated 15 March 2024 (case file DKP1.8082.1.2023). The refused clearance opinion related to the act consisting in setting up a holding company with its seat in the Kingdom of the Netherlands, making a capital injection to that company through contributing capital raised in the form of a share premium from shares of another company, making a contribution of shares held in that Dutch company to a private trust foundation established under the Dutch law (STAK) and making the STAK issue certificates of deposit for beneficiaries (being STAK founders at the same time). According to the Head of the National Revenue Administration, the tax advantage resulting from the planned act, consisting in injecting capital into the Dutch company through making a contribution of capital raised in the form of share premium goes against the subject or purpose of Article 17(1)(9) and Article 30b(1) of the PIT Act that provide for taxation of non-monetary contributions to a company and is non-complaint with the goal of the legislator establishing provisions of Articles 30da - 30dh of the PIT Act on the tax levied on unrealized capital gains.

By the judgment dated 2 July 2024 (case file I FSK 1101/20), the Supreme Administrative Court determined the case pertaining to taxation of activities making up a comprehensive service. Analysis of the "specification" of the linear park as a potential task outsourced to the company by the municipality shows that the development of green areas is given priority in its description. This is determined not only by a simple juxtaposition of the amount of landscaping work and the other activities of the potential contractor, but - above all - by the meaning and the purpose of the entire project. The commissioning municipality is not interested in obtaining a building facility, but only a green area. This is why green area development is a goal per se. It goes without saying that in order to achieve this goal, it is necessary to carry out accompanying works, such as landscaping and the construction of paths, lighting, and information boards. Consequently, it is not the broadly defined landscaping that is an addition to construction works. The same applies to design works (i.e., preparing project documentation). They are part of a comprehensive performance (complex service), i.e., a landscaping service taxed at a reduced 8% VAT rate.

According to the judgment of the Supreme Administrative Court dated 2 July 2024 (case file II FSK 769/22), a limited partnership paying advances against the expected profits to general partners throughout the taxable year is not under the obligation to collect lump-sum income tax as provided for by Article 30a(1)(4) of the PIT Act. With regard to this tax, the legislator has not made it mandatory for the remitter to collect advance payments, while the tax should be calculated according to the rules set forth in Article 30a(6a) thereof. However, this is possible only after calculating the tax due from the limited partnership for the taxable year in which the revenue from the profit sharing was earned.

According to the judgment of the Supreme Administrative Court dated 3 July 2024 (case file I FSK 1449/20), it follows from both the theses formulated in the CJEU case law and the jurisprudence of national courts that the key to assessing whether a given set of assets constitutes an organized part of an enterprise is whether this transferable collection of assets is in such a shape that without any modification (without any significant changes) business activities can continue in a similar scope. If no material functional or organizational changes need to be carried out to continue to pursue activities in the same form, the position that the case involves an organized part of an enterprise and thus the act of its transfer should be viewed as not subject to the provisions of the VAT Act shall be favoured. 

The Ministry of Economic Development and Technology commenced legalization works related to the project entitled: “Digitization of employment contracts and improving digital services for business”. Under the project, a new public e-service will become available, which will relate to digitization of contracts and staff records. At the same time, e-services related to submitting and receiving documents online via biznes.gov.pl portal will get modernized.

The National Revenue Information Service presented a plan of implementation of its services until the end of 2024. It provides for, among others, extending the list of card payments in the e-Tax Office, making available an e-Tax Office mobile application and providing a single National Revenue Administration hotline number. The National Revenue Administration will provide regular updates on the new services to be deployed.