KPMG Weekly Tax Review 26 AUG - 02 SEP 2024

The Ministry of Finance decided to update the FA logical structure. The changes introduced include revising how the payment date is presented, adding a new "employee" option in the "Podmiot3" field for settling employee expenses, increasing the maximum character limit in the "P_7" field (item or service name), and enabling new solutions for local government units and VAT groups. The latest revision of the structure (FA(3)) is to be put out to public consultation already in Fall 2024. Furthermore, the Ministry announced that it is to repeal the regulation of the Minister of Finance dated 27 December 2021 on the use of the KSeF system and replace it with a new one, covering regulations on QR codes, two-factor authentication to access invoices, and external certificates. Moreover, the KSeF IT architecture will be developed entirely anew. Another important change consists in introducing the possibility to add attachments in KSeF. Importantly, the Ministry of Finance announced that it does not foresee abolishing the requirement to provide KSeF numbers when paying e-invoices, in force from 1 August 2026.

https://ksef.podatki.gov.pl/pytania-i-odpowiedzi-ksef/

In a judgment of 27 August 2024, case file I FSK 1679/20, the Supreme Administrative Court agreed with the position presented in the CJEU case law and held that only when it is established that under contractual provisions, a foreign company has human and technical resources of a Polish company at its disposal as if they were its own, it can be assumed that it has its fixed establishment in Poland. If the foreign company has no possibility of managing or exercising any kind of sovereign influence over the logistics personnel activities (handling the warehouse), and, at the same, time, it has no right to own or dispose of the technical infrastructure necessary and used for this purpose, it can be assumed that none of the company's service providers acts at the same time as its fixed establishment in Poland.

According to the judgment of the Supreme Administrative court dated 26 August 2024, case file FSK 1783/20, the management board did not act as a VAT payer when rendering the principal performance. Since the non-compete restriction was closely related to rendering the principal performance, it must be considered that the non-VAT payer status was retained by the managers after the termination of their management contracts during the period covered by the non-compete restriction, which applied to them in connection with the performance of duties or activities under the terminated management contract. Consequently, it should be assumed that the performance rendered is not taxed, meaning that there is no right to deduct input tax on this account. In this case, non-compete compensation should be treated as a severance payment. 

On 28 August 2024, the Government passed the budget bill. The 2025 budget plan provides for a deficit of PLN 289 billion, i.e., 7.3% of Poland’s GDP. The high deficit is conditioned by including in the budget bill the repayment of debt not accounted for in last year's act, among others, the debt and interest under the bonds issued by the Polish Development Fund and the debt under the COVID-19 Counteracting Fund. High spending on national security, amounting to 4.7% of GDP, is also foreseen. At the same time, the bill provides for continuation of the 800+, Active Parent, and similar programs. Due to the financial reform of local government units, a slight decrease in state budget revenues is forecast.

On 28 August 2024, the Ministry of Finance published a set of brochures on JPK_KR_PD and JPK_ŚT_KR logical structures. They describe in detail the content of the logical structure of the JPK_KR_PD book of accounts and the tangible assets record, and they clarify how each element of the logical structure should be interpreted. The brochures (in Polish) are available at: https://www.gov.pl/web/kas/struktury-jpk-w-podatkach-dochodowych. Moreover, a Q&A section related to the logical structure of the books of accounts and tangible assets records has been made available at https://www.podatki.gov.pl/jednolity-plik-kontrolny/pytania-i-odpowiedzi/). Other information on the relevant regulation can be accessed at: Nowe zasady cyfryzacji dokumentacji księgowej w podatku CIT - Ministerstwo Finansów - Portal Gov.pl (www.gov.pl)

According to the judgment of the Supreme Administrative Court dated 27 August 2024, case file I FSK 1662/20, to apply a preferential VAT rate to intra-Community supplies of goods, a company must first verify whether the person passing as the contractor’s representative actually acts on its behalf. The company can be attributed fault in the form of negligence by failing to verify the person who ordered the goods. As a result, in the situation of a supply made to a dishonest contractor, the company has no right to apply 0% VAT rate under Article 42(1) of the VAT Act.

On 27 August 2024, the Ministry of Economic Development and Technology announced via its website that it finalizes works on the first deregulation package for business. The new provisions are intended to shape the legal and institutional environment to make it easier for entrepreneurs to both start a business and continue operating it. The amendments cover the principles of making economic law as well as its assessment. Regulations must be precise and respond to the changing environment. The proposed regulations envisage minimizing the burdens that today hinder business operations and include solutions to streamline the course of administrative proceedings.