Legislation and Practice – May in taxes and business law

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

Legislation

• The Sejm has passed the Whistleblower Protection Act. The Act has been submitted to the Senate.
• The Senate adopted, without amendments, the Act amending the Act on Value Added Tax and certain other acts – changing the deadlines for the mandatory KSeF. The Act has been sent to the President’s desk.
• The Sejm passed the Act amending the Act on the Exchange of Tax Information with Other Countries and Certain Other Acts – Implementation of the DAC7 Directive. The Act has been submitted to the Senate.
• The Senate adopted without amendments the Act amending the Act on the Social Insurance System and certain other acts – the introduction of the so-called “contribution holidays”. The Act has been sent to the President’s desk.
• The assumptions for the draft act amending the Labour Code have been published on the website of the Government Legislation Centre – inter alia civil law contracts and “B2B” contracts to be included in the (work) seniority.
• The assumptions for the draft act on access to the labour market for foreigners have been published on the website of the Government Legislation Centre.

Practice in taxes

Income taxes and transfer pricing

• It is not permissible to settle exempt income jointly while holding a zone permit and a decision on support under the Polish Investment Zone – individual interpretation of the Director of the National Tax Information of 2 May 2024, file reference number 0111-KDIB1-3.4010.126.2024.1.JG.
• The mere support of a programmer without the element of creating a computer program does not give the right to settle in the “IP Box” regime – judgment of the District Administrative Court in Gdansk of 7 May 2024, ile reference number I SA/Gd 46/24.
• Conversion of receivables into equity is a contribution in kind and creates income in CIT – judgment of the District Administrative Court in Wroclaw of 7 May 2024, file reference number I SA/Wr 998/23.
• The Real Estate Tax charged on the rented premises may be included in tax deductible costs – individual interpretation of the Director of the National Tax Information of 7 May 2024, ile reference number 0113-KDIPT2-1.4011.203.2024.2.ID.
• Granting a loan to a related party with a fixed or variable interest rate, but other than those calculated on the basis of the “safe harbour” mechanism, does not exempt from transfer pricing obligations – individual interpretation of the Director of the National Tax Information of 13 May 2024, file reference number 0111-KDIB1-1.4010.130.2022.7.SG.\
• Contribution of real estate to a subsidiary by a family foundation is neutral in CIT – judgment of the District Administrative Court in Poznan of 14 May 2024 (ile reference number I SA/Po 152/24).
• A family foundation is exempt from the tax on controlled foreign companies (CFC) – individual interpretation of the Director of the National Tax Information of 16 May 2024, file reference number 0114-KDIP2-2.4010.145.2024.1.SJ.
• The Minister of Finance declared that the reduction of the so-called “Belka tax” would take place from 1 January 2025.

VAT

• The value of agio (the surplus of the issue value of shares over their nominal value) should be included in the tax base of the in-kind contribution for VAT purposes (judgment of the Court of Justice of the EU of 8 May 2024, ile reference number C-241/23).
• The fee charged in connection with the termination of the agreement due to the fault of the other party to the agreement has a compensatory function and is not subject to VAT – judgment of the Supreme Administrative Court of 17 May 2024, file reference number I FSK 1240/20.
• Extending the deadline for VAT refund is permissible, but it must not violate the principle of neutrality – judgment of the Supreme Administrative Court of 23 May 2024, file reference number I FSK 1717/23.

International Taxes

• Computer servers may be considered industrial devices for WHT purposes – judgment of the Supreme Administrative Court of 16 May 2024, file reference number II FSK 1078/21.
• EU finance ministers reached an agreement on the provisions of the planned FASTER directive. It is to introduce a simpler settlement of the withholding tax in the European Union. We are waiting for further legislative work at the EU level.

Other

• The Minister of Finance has published tax explanations of 8 May 2024 – real estate tax exemptions for rail freight terminals (applicable from 1 January 2024) – https://www.gov.pl/web/finanse/objasnienia-podatkowe-z-8-maja-2024-r-stosowanie-od-1-stycznia-2024-r-zwolnienia-z-podatku-od-nieruchomosci-w-odniesieniu-do-kolejowych-terminali-towarowych.
• The Minister of Labour and Social Policy proposed to set the minimum wage level at 60% of the average wage. Nevertheless, the Prime Minister stressed that such changes will not be implemented for the time being.
• The statute of limitations for civil law claims occurs on a non-working day and there is no extension of this period to the first working day – resolution of the Supreme Court of 15 May 2024, file reference number III CZP 21/23.