Legislation and practice – June in taxes and business law

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

Legislation

• The Act amending the VAT Act (the “SLIM VAT 3”) package was published in the “Journal of Laws” (item 1059).
• The Decree on the cancellation of the state of epidemic emergency in the territory of the Republic of Poland was published in the “Journal of Laws” (item 1118) – as of 1 July, the state of epidemic emergency is cancelled in Poland.
• The Sejm passed an amendment to the VAT Act – the introduction of an obligatory National e-Invoices System (Pol. KSeF).
• The Decree amending the decree on reduced rates of tax on goods and services in 2023 was published in the “Journal of Laws” (item 1224) – extending the application of the 0% rate until the end of 2023.
• The Sejm passed an amendment to the CIT Act and the PIT Act – sustaining the limit for cash payments at PLN 15,000.
• The Act on the Agricultural Protection Fund was published in the “Journal of Laws” (item 1130) – it provides, in particular, for the introduction of a new levy (0.125% of the net value of products purchased from agricultural producers). Originally, the value of the levy was to be twice as high.
• The Sejm passed a law amending the Act on real estate management and certain other acts – introducing, inter alia, the possibility to acquire ownership of land that is subject to perpetual usufruct, introducing 6% stamp duty on the purchase of the sixth and subsequent dwelling, abolishing 2% stamp duty on the sale of a house/apartment if the buyer is certain natural persons (e.g. purchase of the first property).
• The Decree on determining the amounts of the value of property and property rights exempt from inheritance and donation tax and not subject to this tax, as well as the tax scales according to which this tax is calculated, amending the regulation on reduced rates of tax on goods and services in 2023 was published in the “Journal od Laws” (item 1226).

Tax practice

Income taxes and transfer pricing

• Contribution of assets in the form of shares to a family foundation does not create the founder’s income for PIT purposes – individual interpretation by the Director of National Fiscal Information of 15 June 2023, file reference number 0113-KDIPT2-3.4011.284.2023.3.JŚ.
• Amounts transferred to PFRON (Polish disabled fund) do not constitute hidden profits, taxed with “Estonian” CIT – individual interpretation of the Director of National Fiscal Information of 1 June 2023, file reference number 0111-KDIB2-1.4010.149.2023.1.KK.
• The prohibition on depreciation of residential premises is incompatible with the Constitution of the Republic of Poland and violates the acquired rights and pending interests of taxpayers – judgment of the Voivodship Administrative Court in Łódź of 27 June 2023, file reference number I SA/Łd 258/23.
• The expense of a contractual penalty related to withdrawal from a contract motivated by the desire to avoid a loss is a tax cost in income tax (PIT) – judgment of the Supreme Administrative Court of 21 June 2023, file reference number II FSK 68/21.

VAT

• Transfer of own goods to another EU country in order to perform a comprehensive service with their use constitutes non-transitory ICS – judgment of the Supreme Administrative Court of 2 June 2023, file reference number I FSK 832/20.
• Renting a flat for employees, contractors or contractors gives the right to deduct input VAT (judgment of the Supreme Administrative Court of 2 June 2023, file reference number I FSK 542/19).
• An advance invoice issued earlier than within the statutory period of 30 days before the date on which the tax obligation arises is not an “blank” invoice within the meaning of the VAT Act – judgment of the Supreme Administrative Court of 21 June 2023, file reference number I FSK 686/19.
• The possibility to opt for VAT taxation of financial services (renouncing the exemption) also applies to the import of services (judgment of the Voivodship Administrative Court in Warsaw of 16 June 2023, file reference number III SA/Wa 490/23).
• Ministry of Finance updated version of the FA(2) logical structure template: LINK.
• The Ministry of Finance has published an updated version of the JPK_GV(1) structure template – concerning the VAT group (LINK).

International taxes

• The European Commission is proposing new solutions to enhance the efficiency and security of withholding tax procedures in the EU. Among the detailed proposals are: a common EU digital tax residence certificate, a ‘fast-track’ WHT pathway or a harmonised reporting obligation. The implementation of these provisions would take place by the end of 2026.
• From 1 July this year, the provisions of the MLI Convention will apply to Poland’s double tax treaty with Mexico.

Other

• The Ministry of Finance has presented a draft of amendments to the Tax Ordinance – among the most important proposals are: the timeliness of issuing individual interpretations, the introduction of binding classification information or changes to tax procedures.
• The provisions of the Tax Ordinance differentiating the interest rate of an overpayment resulting from a CJEU ruling depending on the date of filing the application is incompatible with EU law – CJEU judgment of 8 June 2023, file reference number C-322/22.
• The “SLIM VAT 3” package includes, inter alia, a provision that postpones the deadline for sending to the tax authorities the uniform control files concerning the accounts – until 31 December 2025 for SAF_CIT and until 31 December 2026 for SAF_PIT.
• For the purposes of non-collection of the sugar levy, it is sufficient to stipulate in the seller’s terms and conditions for online sales that the goods may not be resold – judgment of the Supreme Administrative Court of 7 June 2023 (file reference number III FSK 29/23).