Since 15 July 2016, legislation has been in force that allows the Head of the National Revenue Administration to apply a General Anti-Avoidance Rule. These provisions – amended as of 1 January 2019 - define the limits of tax optimisation that is legal.
Anti-Avoidance Rule
According to the amended provisions, as of 1 January 2019 a general rule applies to a transaction performed primarily for the purpose of obtaining a tax advantage or where one of the main purposes was to obtain such an advantage, if the advantage is contrary to the object or purpose of the tax legislation or a provision thereof.
Such a transaction does not result in the attainment of the above-mentioned tax advantage if the mode of action was artificial, i.e. if it would not have been applied by an entity acting reasonably and with legitimate aims for predominantly sound economic reasons. These reasons do not include the purpose of obtaining a tax advantage contrary to the object or purpose of the tax legislation or a provision thereof.
In assessing whether a course of action was artificial, the Head of the NRA takes into account, among other things:
- unjustified splitting of operations;
- involvement of intermediaries despite the lack of economic or business justification;
- elements leading to a state identical or close to the state existing before the transaction was performed;
- elements that cancel each other out or compensate for each other;
- economic risk exceeding the expected non-tax advantages to such an extent that a prudent person would not have chosen that course of action;
- situations where the tax advantage achieved is not reflected in the economic risk incurred by the entity or its cash flows;
- the occurrence of a pre-tax profit that is insignificant compared to the tax advantage not directly attributable to the economic loss actually incurred;
- involvement of an entity which does not pursue a genuine economic activity or does not fulfil an important economic function, or which is established in a country or territory applying harmful tax competitive measures.
If tax avoidance is confirmed, the Head of the NRA determines, by way of a decision, the tax effects of such transactions on the basis of the state of affairs that could have occurred if the transactions had been performed by an entity pursuing legitimate objectives other than achieving a tax advantage.
In a situation where the circumstances indicate that achieving a tax advantage was the only purpose of the transaction performed, the tax effects will be determined on the basis of the state of affairs that would have existed if the transaction had not been performed.
The Head of the NRA is also entitled to determine tax effects disregarding a provision of the tax legislation, if the aforementioned tax advantage was achieved as a result of the application of such a provision specifying the conditions for granting a tax exemption, exclusion from the taxable amount, including exclusion of income (revenue) from taxation, or deduction from revenue, income or tax.
The Anti-Avoidance Rule does not apply:
- to an entity that obtained a protective opinion, to the extent covered by the opinion, until the date of service of the revocation or amendment of the protective opinion;
- to an entity that entered into a tax agreement – to the extent covered by that agreement;
- to the VAT tax and to fees and non-tax amounts due to the budget.
The issue of a decision applying the rule, regarding an advantage obtained after 1 January 2019, may result in determining that additional tax liability is due.
The decision issued in the first instance by the Head of NRA may be appealed against by a party on general principles specified in the Tax Ordinance.
After 1 January 2019, the Head of NRA may, at the request of the interested party, issue a decision setting out the conditions for revoking the effects of tax avoidance, which the taxpayer may take into account when submitting a return or a correction to the return corresponding to the contents of the decision within 14 days of its delivery. Undoing the effects of tax avoidance in this way does not impose an additional tax liability on the person concerned in relation to tax avoidance. In addition, no interest will accrue on tax arrears related to the undue tax advantage for the period between the date of the request and the date of revocation of the tax avoidance effects in accordance with the decision issued.
Council on Tax Avoidance
The applicability of the Anti-Avoidance Rule in individual cases is assessed by the Council on Tax Avoidance. The opinion of the Council is issued at the request of the Head of NRA in the course of proceedings or at the request of a party included in an appeal against a decision issued while the Anti-Avoidance Rule was applied.
Individual tax ruling with respect to anti-avoidance rules
The introduced procedure also provides for the possibility to apply to the Head of NRA for a protective opinion. A request for an opinion may relate to a transaction that is planned, commenced or already carried out and should include, among other things[1]:
- particulars of the applying entity;
- indication of the actors involved;
- comprehensive description of the transactions together with indication of the relations, as referred to in the transfer pricing rules, between the entities;
- The Tax Scheme Number, within the meaning of the MDR, relating to the reconciliation, or an explanation of why, for factual or legal reasons, the reconciliation was not subject to notification for the purposes of awarding the TSN;
- indication of the objectives pursued by way of the transaction;
- indication of the economic or business justification for the transaction;
- identification of the tax effects, including tax advantages, of the activities covered by the request;
- indication of other tax advantages not subject to assessment under the protective opinion, the achievement of which is dependent (even indirectly) on the implementation of the transactions;
- indication of other activities planned, commenced or carried out on which the attainment of tax advantages is dependent, even if only indirectly;
- own position in the matter.
The Head of the NRA issues a protective opinion if the circumstances presented in the request indicate that the provisions on tax avoidance do not apply to the tax advantage resulting from the transaction.
A request n for an opinion is subject to a fee of PLN 20,000, and if there are five or more interested parties, the fee is increased by PLN 5,000. The fee must be paid within 7 days from the date of filing the request to the following account:
Name of the account holder:
Ministerstwo Finansów [Ministry of Finance]
Department of Finance and Accounting
00-916 Warszawa [Warsaw], ul. Świętokrzyska 12
Bank’s name:
Narodowy Bank Polski O/O Warszawa
[National Bank of Poland, Warsaw Branch]
Bank account number:
10 1010 1010 0038 2522 3100 0000
Issuing opinions on requests for individual tax rulings
The regulations also provide for the possibility of not issuing an individual tax ruling with respect to those elements of the state of affairs or future event in respect of which there is a presumption that they may be the subject of a decision issued pursuant to the Anti-Avoidance Rule. The justification for not issuing an individual tax ruling in the above scope is subject to an opinion of the Head of NRA.
Detailed conditions for the application of the Anti-Avoidance Rule are set out in the Tax Ordinance, in particular in Section IIIA of that Act.
[1] The scope of information required to submit a request for a protective opinion is set forth in the legislation. In this regard, no implementing act has been issued specifying the form that an interested party would use to submit a request for a protective opinion.