Legislation and Practice – January in taxes and business law

We present below a short summary of the most important changes in tax/business law and practice in January.

Legislation

• A protocol and a statement to amend the Guernsey Tax Avoidance Agreement were published in the Journal of Laws (items 10 and 11) – “anti-abuse” changes, in particular the introduction of the entitlement clause to contractual benefits.
• A draft act amending the Act on the Social Insurance System and certain other acts has been published on the website of the Government Legislation Centre – in particular introduction of “contribution holidays” for selected entrepreneurs.
• New documentation for the draft act amending the Accounting Act and the Act on Statutory Auditors, Audit Firms and Public Supervision (implementation of Directive 2021/2101) has been published on the website of the Government Legislation Centre.
• New documentation for the draft act amending the act on the exchange of tax information with other countries and certain other acts has been published on the website of the Government Legislation Centre – implementation of the DAC7 Directive.

Tax Practice

Income taxes and transfer pricing

• Both limits for the application of the 9% CIT rate in 2024 are defined: (I) for income for 2023 it is PLN 9,218,000 gross (EUR 2 million at the exchange rate as of 2 October 2023) and (II) for income in 2024 PLN 8,687,000 net (EUR 2 million at the exchange rate as at 2 January 2024).
• An employer may include expenses incurred for the provision of catering services, sports activities or massages to employees as tax-deductible costs – individual interpretation of the Director of the National Tax Information of 3 January 2024, file reference number 0114-KDIP2-1.4010.622.2023.2.DK.
• Providing accommodation to an employee is not taxable income from free-of-charge benefits – judgments of the Supreme Administrative Court of 9 January 2024, file reference number II FSK 434/21 and II FSK 1332/21.
• The so-called “exit tax” regulations apply only to natural persons conducting business activity – judgment of the Supreme Administrative Court of 16 January 2024, file reference number II FSK 506/21.
• Taxpayers of the “Estonian” CIT are not subject to the ban on depreciation of residential premises – individual interpretation of the Director of the National Tax Information of 19 January 2024, file reference number 0111-KDIB1-2.4010.646.2023.3. MC.
• Sub-licensing income is a source of capital gains income. At the same time, it is irrelevant whether the taxpayer’s trademarks were subject to depreciation – judgment of the Supreme Administrative Court of 24 January 2024, file reference number II FSK 1937/23.
• In order to be effective, the submission of the ZAW-RD during the year does not require prior closing of the accounting books and preparation of financial statements – general interpretation of the Minister of Finance of 25 January 2024, file reference number DD8.8203.1.2023).
• The Supreme Administrative Court once again ruled in favour of the possibility of retroactive adjustment of tax depreciation rates for non-tax limited years – judgments of 25 January 2024, file reference number II FSK 545/21 and II FSK 807/21.

VAT

• The Minister of Finance announced the postponement of the entry into force of the mandatory KSeF. The exact date is not yet known, it will be given around April. It is possible that it will be the beginning of 2025.
• The District Administrative Court in Wroclaw has asked the CJEU whether it is consistent with EU law that a member of the management board (who may be held liable in the alternative) cannot participate in the assessment proceedings against the company? (decision of 25 January 2024, file reference number I SA/Wr 4/23). The case concerns VAT.
• In a situation where an employee of a taxable person for value added tax (VAT) has issued a false invoice showing VAT, using the identity of the employer as a taxable person without the employer’s knowledge and consent, that employee should be considered a person showing VAT within the meaning of Article 203, unless the taxable person has not exercised due diligence reasonably required to control the activities of that employee – judgment of the Court of Justice of the EU of 30 January 2024 (file reference number C-442/22).
• The District Administrative Court in Wroclaw has referred a question to the Court of Justice of the European Union for a preliminary ruling on the compliance with EU law of the Polish provisions on the subsidiary liability of members of the management board, in particular in the context of the lack of a good faith examination (decision of 31 January 2024, file reference number I SA/Wr 966/22). The case concerns VAT.

International Taxes

• Under the binding regulations of 2019, in order to exercise due diligence in the field of advertising services, it was sufficient to have a certificate of residence, without the component of identification of the beneficial owner – judgments of the Supreme Administrative Court of 23 January 2024 (file reference number II FSK 480/21, II FSK 610/21) and 24 January 2024 (file reference number II FSK 481/21, II FSK 677/21).

Other

• An individual interpretation may not be refused if the general interpretation issued in this matter does not resolve the taxpayer’s specific doubts – judgment of the District Administrative Court in Szczecin of 10 January 2024, file reference number I SA/Sz 543/23.
• The Council of Ministers plans to adopt an act on cryptocurrencies in the first quarter of this year.
• The Council of Ministers will proceed with the draft act on whistleblowers, developed by the previous Council of Ministers.
• The President of the Central Statistical Office has determined the statistical thresholds for 2024 in the INTRASTAT system: (I) the basic threshold for imports: PLN 6,200,000, (II) the basic threshold for exports: PLN 2,800,000, (III) the detailed threshold for imports: PLN 103,000,000, (IV) the detailed threshold for exports: PLN 150,000,000.