We present below a short summary of the most important changes in tax law and tax practice in September:
Legislation
- the Sejm adopted the bill of amendment to the CIT Act and other tax acts. The project assumes, among others postponement and amendment of the “minimum” tax regulations, elimination of “hidden dividends” or changes in the scope of: CFC, WHT, thin capitalization or “Estonian” CIT. We wrote about the changes HERE. Additionally, the project:
- removes the documentation obligation for “indirect tax heaven” transactions (declarations) – with retroactive effect from 2021;
- increases the documentation thresholds for “direct tax heaven transactions” (PLN 500 / 2,500 thousand);
- extends the validity of WH-OSC statements (with effect from 2021);
- extends the “Anti-Inflation Shield” until the end of the year;
- extends VAT rates at 23/8% until 2023.
- The Decree of the Minister of Finance on the extension of certain deadlines for the performance of WHT tax obligations by the remitters (item 1829) was published in the Journal of Laws – extension of the validity of WH-OSC statements. We wrote about it here: HERE.
- On the website of the Government Legislation Center a draft act amending the act on the liability of collective entities for acts prohibited under penalty was published. The changes concern, inter alia, the introduction of a new definition of a “collective entity”, the elimination of the prior conviction of a natural person as a condition of liability of a collective entity, liability for “anonymous acts, indications of the premises of culpability and conditions for exemption, narrowing the subjective scope of the act, or changes in the scope of penalties and procedures.
- The Decree of the Minister of Finance on information on transfer pricing in the field of personal / corporate income tax (item 1923/1934) was published in the Journal of Laws – changes to TPR information.
- The Sejm adopted the Act of September 29, 2022 amending the Act on counteracting excessive delays in commercial transactions and the Act on Public Finance – simplifying and clarifying amendments. The project was submitted to the Senate. We wrote about the changes HERE.
- On the website of the Government Legislation Center the assumptions for the draft act amending the act on upbringing in sobriety and counteracting alcoholism, the act on public health and some other acts was published – changes in the “sugar” fee and the “alcohol dinks” fee.
- On the website of the Government Legislation Center, assumptions for the draft act amending the accounting act and the act on statutory auditors, audit firms and public oversight was published – implementation of Directive 2021/2101, obligation to publicly disclose the income tax report by country.
Tax practice
Income taxes and transfer prices
- Eligible costs for R&D include employee costs also in a situation where employees are on vacation or sick leave – judgment of the Supreme Administrative Court of September 1, 2022 (file ref. II FSK 3033/19).
- Transformation of a limited liability company into a joint-stock company should not create income in PIT for partners – judgment of the Supreme Administrative Court of August 31, 2022 (file ref. II FSK 2855/19).
- The Director of the National Tax Information should assess whether the activity described by the taxpayer is an R&D activity, and not require the applicant to specify it in the actual state of the application for an individual tax ruling (judgment of the Supreme Administrative Court of September 9, 2022, file ref. II FSK 3240/19).
- In the case of the sale of shares, transferred in kind to a general partnership, which later transformed into a limited liability company, “historical” tax costs should be applied (judgment of the Supreme Administrative Court of September 9, 2022, file ref. II FSK 2703/20).
- Another positive ruling on the right of a general partner to reduce PIT by the limited partnership tax when paying advances for profit (judgment of the District Administrative Court in Lublin of September 7, 2022, file reference number I SA/Lu 230/22).
- Power plant construction costs are excluded from the “thin capitalization” cost limit (as public infrastructure projects; Supreme Administrative Court judgment of 20 September 2022, file ref. II FSK 10/20).
- The taxpayer is not entitled to include the amount of the non-deducted VAT as tax costs, if the lack of deduction results from the failure to provide the invoice by that contractor (judgment of the District Administrative Court in Warsaw of September 13, 2022, file ref/ III SA/Wa 989/22).
- Expenses for the legalization fees of foreigners, incurred by the employer, do not create income for them from free benefits (judgment of the Supreme Administrative Court of September 27, 2022, file ref. II FSK 49/20).
- The “redemption” of the disputed claim does not give the right to settle CIT tax costs (judgment of the Supreme Administrative Court of 27 September 2022, file ref. II FSK 199/20).
International taxes
- Fees for hosting services (server rental) are not subject to withholding tax (judgment of the Provincial Administrative Court in Kraków of August 25, 2022, file reference number I SA/Kr 101/22).
- Poland and Brazil signed a double taxation avoidance agreement.
VAT
- The mere fact of the contractor’s (supplier’s) financial problems and their failure to pay the output VAT should not limit the buyer’s right to deduct input tax (CJEU judgment of September 15, 2022, file ref. C-227/21).
- The contract – under certain conditions – can be considered a VAT invoice (if it contains relevant elements, including the VAT amount) – judgment of the Court of Justice of the European Union of September 29, 2022 (ref. C-235/21).
Other
- Representatives of the Ministry of Finance informed that there are some works an amendment to the Tax Ordinance, which would, inter alia, include the elimination of the principle of suspension of the limitation period in penal fiscal proceedings or the introduction of a new, simplified fiscal procedure.
- New information templates for TPR-C and TPR-P (for reporting for 2021) were published.
