Poland: VAT rate on take-away meals; eligible costs of new investment projects (Supreme Administrative Court decisions)

The KPMG member firm in Poland prepared a report that includes summaries of the following decisions of the Supreme Administrative Court (SAC) issued on 6 February 2024.

• The court referred to a panel of seven judges of the SAC (case I FSK 1382/23) the question of the appropriate rate of value added tax (VAT) on the delivery of take-away meals using “drive-in,” “walk-through,” “in-store,” and “food court” formulas, in line with the laws in force in Poland from 24 June 2016 to 30 June 2020. The Provincial Administrative Court in Poznań (the court of first instance) held that any delivery of take-away meals is subject to 5% VAT (case file I SA/Po 82/23). The court relied on the CJEU judgment dated 22 April 2021 (case file C-703/19) under which “restaurant and catering services” includes the supply of food accompanied by sufficient support services intended to enable the immediate consumption of that food by the end customer; when the end customer chooses not to benefit from the material and human resources made available by the taxable person to accompany the consumption of the food supplied, it must be concluded that no support services accompany the supply of that food.
• The court held (case file II FSK 608/21) that that “eligible costs” for purposes of calculating the tax exemption amount for a new investment project include all costs of fixed assets making up a new establishment, including expenses for the office, administrative and social space, office equipment, space development, parking lots, and access roads.

Read a February 2024 report prepared by the KPMG member firm in Poland