Legislation and Practice – February in taxes and business law

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

Legislation

• The Decree on the model of the general power of attorney and the model notification of change, revocation or termination of this power of attorney was published in the “Journal of Laws” (item 118) – new templates of PPO and OPO forms.
• A draft act amending the Accounting Act and certain other acts has been published on the website of the Government Legislation Centre. Implementation of Directive 2022/2464 – the changes are to apply to non-financial reporting and to raise the financial thresholds for defining entities from the SME sector.
• A draft act on cryptocurrencies has been published on the website of the Government Legislation Centre.
• The Act amending the Act on Assistance to Ukrainian Citizens in Connection with the Armed Conflict on the Territory of Ukraine was published in the Journal of Laws (item 232) – extension of the application of the solutions until 30 June 2024.
• The Council of Ministers has adopted a draft act amending the Accounting Act – the obligation to publicly disclose income tax reports by country (implementation of Directive 2021/2101).
• The assumptions for the act on equalisation taxation of entities belonging to international and domestic groups have been published on the website of the Government Legislation Centre – implementation of a global minimum tax (as part of the so-called “Pillar 2” initiative).
• A draft decree amending the decree on reduced rates of value added tax has been published on the website of the Government Legislation Centre – reduced (8%) VAT rate for certain services in the cosmetics industry.

Tax Practice

Income taxes and transfer pricing

• The contractual penalty for late performance of the service is a taxable cost – judgment of the Supreme Administrative Court of 6 February 2024, file reference number II FSK 608/21.
• Eligible costs in the decision on support may also include investment costs in the area of office and social services – judgment of the Supreme Administrative Court of 7 February 2024, file reference number II FSK 646/21.
• A company which, after the acquisition of another company, continues to operate, adding only extensions to other scopes, should not be limited in the settlement of tax losses – judgment of the District Administrative Court in Gliwice of 7 February 2024, file reference number I SA/Gl 511/23.
• Ministry of Finance: the costs of remuneration for the period of leave and illness are eligible costs under the B+R relief. The Ministry thus accepts the line of case law of administrative courts (general interpretation of the Minister of Finance of 13 February 2024, file reference number DD8.8203.1.2021).
• Remuneration for lease management services purchased by a family foundation is subject to CIT as hidden profits – individual interpretation of the Director of the National Tax Information of 13 February 2024, file reference number 0111-KDIB1-2.4010.693.2023.2.MK.
• Income from interest on bank deposits is not subject to taxation in a family foundation (individual interpretation of the Director of the National Tax Information of 13 February 2024, file reference number 0111-KDIB1-2.4010.630.2023.1.ANK).
• Not only the first reorganisation is tax-neutral – judgment of the District Administrative Court in Gdansk of 13 February 2024, file reference number I SA/Gd 802/23.
• Income from the sale of shares is generated on an accrual basis, even if the payment of the price is conditional due to contractual terms – judgment of the District Administrative Court in Wroclaw of 14 February 2024, file reference number I SA/Wr 577/23.
• The designation of the settlement in the form of a flat tax in the title of the transfer may be considered as a statement on the choice of this form of taxation – judgment of the Supreme Administrative Court of 22 February 2024, file reference number II FSK 710/21.
• Trading in cryptocurrencies by a family foundation is not a permitted activity and is subject to CIT – judgment of the District Administrative Court in Gdansk of 22 February 2024, file reference number I SA/Po 895/23.

VAT

• Erroneous VAT rate does not deprive the taxpayer of the right to deduct input tax – individual interpretation of the Director of the National Tax Information of 8 February 2024, file reference number 0112-KDIL1-3.4012.556.2023.2.KK.

International Taxes

• The OECD has published the Pillar One report. It is intended to standardise the application of the arm’s length principle for marketing and distribution activities.
• A statement on the validity of the MLI Convention to the Polish-Malaysian double taxation treaty (as of 1 January 2024) has been published in the Journal of Laws (item 230).
• The EU list of non-cooperative jurisdictions for tax purposes has been updated. The Bahamas, Belize, Seychelles and Turks and Caicos Islands were removed from the list.

Other

• Equipment, structures and land in river ports are exempt from real estate tax in the same way as in seaports – judgment of the Supreme Administrative Court of 13 February 2024, file reference number II FSK 4345/21.
• The employer has the right to store personal data from the CV after the recruitment process is completed, if it is justified by claims for violation of the principle of equal treatment in employment – judgment of the Supreme Administrative Court of 20 February 2024, file reference number III OSK 2700/22.
• A shareholder of a two-person limited liability company holding 99 percent of the shares is not subject to social insurance pursuant to Article 6 sec. 1 point 5 in conjunction with Article 8 sec. 6 point 4 of the Act on the Social Insurance System – resolution of the Supreme Court of 21 February 2024 (file reference number III UZP 8/23).