Personal scope of application As per 26 June 2022

Are there any deviations from the Directive in defining the intermediary?

2021/06/17

The Polish law provides two separate definitions for promoter (a person who creates the tax arrangement) and advisor (a person who only helps to implement the tax arrangement created by promoter or taxpayer), both of which persons are regarded as intermediaries under the Directive. The reason for this is to distinguish between different reporting obligations of these two persons.

How is an intermediary defined? Is there a differentiation between a corporate entity and an individual person?

2021/06/17

In principle, natural as well as legal persons can qualify as an intermediary. Both tax advisory firm as well as individual tax advisor who plays a managerial role can qualify as an intermediary. However, reporting tax arrangement by tax advisory firm relieves individual tax advisor from this obligation.

Can a corporate tax department (or its members) within a MNE or within a group of entities qualify as an intermediary?

2021/06/17

A company that has a corporate tax department or members of that corporate tax department can qualify as an intermediary.

How are the actions of designing, marketing, organizing, making available for implementation or managing the implementation of a tax arrangement defined?

2021/06/17

Making available means:1. Offering the arrangement to the user, entry into an agreement the subject matter of which is to file information on the arrangement, or the acceptance of remuneration for the provision of information on the arrangement;2. Providing information on the arrangement, in particular by presenting its assumptions, to the user in any form, including by electronic means, by phone or in person.Managing the implementation means the performance of factual or legal activities enabling the performance or intended to perform the arrangement, including:1.Management, actual participation in decision making or performance of activities related to the arrangement, including when decisions or activities concern the performance of an arrangement by another entity;2. Intermediation or support in activities related to the arrangement;3. Performance of other activities forming part of the arrangement;4. Offering the activities indicated in points above, entering into an agreement the subject matter of which are these activities, or acceptance of remuneration for these activities or under the agreement.

Have the legal preconditions regarding the territorial nexus for an intermediary been implemented in accordance with the Directive?

2021/06/17

Any person, regardless of its establishment or tax residency, can be an intermediary.

Are there any other conditions apart from those of the Directive, such as the territorial nexus of a tax arrangement to a certain Member State, which trigger a reporting obligation of an intermediary (e.g. including intermediaries from outside the EU)?

2021/06/17

As Polish provisions refer both to cross-border and domestic tax arrangements, they contain a wider scope of hallmarks that trigger reporting obligation comparing to the Directive.

In which cases is the relevant taxpayer obliged to report? Are there deviations from the Directive?

2021/06/17

There are no deviations from the Directive.

Are there any other persons beside intermediaries or relevant taxpayers obliged to report?

2021/06/17

There are no deviations from the Directive.

Are there any deviations from the Directive in defining the relevant taxpayer?

Mechanism to avoid multiple reporting

Which measures have been taken to avoid multiple reporting obligations referring to an intermediary obliged to report in several countries? Are there deviations from the Directive?

2021/06/17

There are no deviations from the Directive.

Which measures have been taken to avoid multiple reporting obligations referring to more than one intermediary obliged to report? Are there deviations from the Directive?

2021/06/17

There are no deviations from the Directive.

Which measures have been taken to avoid multiple reporting obligations referring to a relevant taxpayer obliged to report several countries? Are there deviations from the Directive?

2021/06/17

There are no deviations from the Directive.

Which measures have been taken to avoid multiple reporting obligations referring to more than one relevant taxpayer obliged to report? Are there deviations from the Directive?

2021/06/17

There are no deviations from the Directive.

How does the National Tax Authority expect the conditions for exemption from filing a report to be met?

2021/06/17

In Poland, the proof that another user has filed the report can be adduced by reference to the registration number and the disclosure number of the Member State, in which the tax arrangement has been reported before. These numbers do not have to be reported to the tax authorities but it is sufficient to be able to provide the information on request during a tax audit.

Material scope of application

Are national tax arrangements subject to reporting under the Directive?

2021/06/17

National tax arrangements are subject to report.

Which taxes are affected? Are there deviations from the Directive?

2021/06/17

All taxes are subject to domestic tax arrangements. As regards cross-border tax arrangements there are no deviations from the Directive.

Does the hallmark catalogue deviate from the Directive? If yes, to what extent?

2021/06/17

The hallmark catalogue does, in principle, not deviate from the Directive. However, the catalogue is extended by several hallmarks for the purposes of reporting the domestic tax arrangements. Some of them are the only clarifications of the hallmarks listed in the Directive.

Which hallmarks are linked with the main benefit test?

2021/06/17

There are no deviations from the Directive.

How is the main benefit test defined?

2021/06/17

The main benefit test shall be deemed satisfied if based on existing circumstances or facts it is necessary to assume that an entity acting reasonably and pursuing a legitimate objective other than gaining a tax advantage could reasonably choose another course of action that would not entail gaining a tax advantage that could be reasonably expected or a tax advantage resulting from the implementation of an arrangement and the tax advantage is the main or one of the main benefits which the entity expects to gain in connection with the implementation of an arrangement.

How is a tax advantage defined?

2021/06/17

Tax advantage means:1. Non-occurrence of tax liability, its postponement in time or a reduction of its value;2. The occurrence or overvaluation of a tax loss;3. The occurrence of a tax overpayment or the right to a tax refund or an increase in the tax overpayment or refund amount;4. The absence of an obligation to collect the tax by the tax remitter, if this results from the circumstances indicated in the first point;5. An increase of the excess amount of input tax over output tax, within the meaning of the provisions, laid down in the Act of 11 March 2004 on Tax on Goods and Services, to be carried over to the next settlement period;6. Non-application or postponement in time of the obligation to prepare and submit tax information, including information on tax schemes.

Are there any deviations from the Directive in defining a cross-border arrangement?

Is there a white list defining arrangements explicitly excluded from a reporting obligation? If yes, please provide details.

Are there any deviations from the Directive in defining associated enterprises?

Reporting process

When is a cross border arrangement made available for implementation (e.g. handover of contract documents)?

2021/06/17

Making available means:- offering the arrangement to the user, entry into an agreement the subject matter of which is to file information on the arrangement, or the acceptance of remuneration for the provision of information on the arrangement, or- providing information on the arrangement, in particular by presenting its assumptions, to the user in any form, including by electronic means, by phone or in person.

When is a cross-border arrangement ready for implementation?

2021/06/17

There is no specific guidance.

When has the first step in the implementation of a cross-border arrangement been made?

2021/06/17

There is no specific guidance.

Which information should be included in the report? Are there deviations from the Directive?

2021/06/17

There are no deviations from the Directive.

What does the reporting process look like? Are there deviations from the Directive?

2021/06/17

In general, the intermediary has to file the whole report. After filing the report, the intermediary receives a registration number by the tax authority which is to be forwarded to the users and to other intermediaries mentioned in the report. In order to do so, an intermediary who is subject to a legal professional privilege needs to be released from his/her confidentiality obligation by the corresponding user. If the user does not release the intermediary, the whole report must be filed by the user and the intermediary must provide the user with the information about the tax arrangement.

Is the entire report to be provided by the intermediary/relevant taxpayer? Who must provide the report?

2021/06/17

The intermediary, as well as the relevant taxpayer, are obliged to provide the entire report.

What are the respective deadlines for the intermediary and the relevant taxpayer to file the report? Are there deviations from the Directive in terms of filing the information within 30 days?

2021/06/17

There are no deviations from the Directive.

Which numbers are assigned by local tax authorities to the cross-border arrangements?

2021/06/17

The Head of the National Tax Administration assigns a tax scheme number (TSN) and provides a confirmation of its assignment which includes the TSN and data contained in the filed information on the tax scheme.

What is the reporting deadline for arrangements the first step of which was implemented between 25 June 2018 and 30 June 2020?

When is the reporting deadline for arrangements for which the event triggering the reporting obligation lies between 1 July 2020 and 31 December 2020?

When is the reporting deadline for arrangements for which the event triggering the reporting obligation lies after 1 January 2021?

Penalties

In which cases are penalties imposed?

2021/06/17

Sanctions are imposed in cases, if:1. The report was omitted;2. The report was filed late;3. The intermediary did not provide the user with data necessary to file the report.Large firms acting as promoters, defined by the law, are obliged to implement and apply an internal procedure to counteract failure to satisfy the obligation to file information on tax arrangements. Non-compliance with this obligation is subject to sanctions.

What are the penalties?

2021/06/17

Failure to comply with the MDR can be sanctioned with a fine of up to around EUR 5.5 million. In practice, a much lower fine can be expected.

Is a distinction made between penalties imposed on intermediaries/relevant taxpayers/other persons obliged to report?

2021/06/17

No distinction is made between intermediaries and users.

What are the penalties in case of redundant reports? A redundant report is a report, which was filed, although there is no obligation to file one.

2021/06/17

There are no sanctions for redundant reports.

Do the penalties differ with regard to incomplete, incorrect, missing or late reports? Are there any gradations?

2021/06/17

The penalties do not differ.

Are arrangements the first step of which was implemented between 25 June 2018 and 30 June 2020 treated differently in the means of penalties?

Other aspects

Do already other reporting regimes on cross-border arrangements exist?

2021/06/17

No other disclosure regimes exist.

Are there any other special deviations from the Directive? 

2021/06/17

There are no deviations from the Directive.

What is the name of the national Tax Authority responsible for DAC6?

Do any other obligations apart from reporting a reportable cross-border arrangement exist under the national DAC6 legislation? (i.e. indication of the arrangement in the tax return)

Professional privilege/secrecy

Who is primarily obliged to report? Is there a primary reporting obligation of the intermediary or the relevant taxpayer? Is there legal privilege and in how far has it been considered for allocating the reporting obligation?

2021/06/17

There are no deviations from the Directive.

Does the reporting obligation breach a legal professional privilege under national law?

2021/06/17

The reporting obligation could be in breach with the legal professional privilege for certain professions e.g. lawyers, tax consultants and auditors in Poland. In order to avoid conflicts, for an intermediary subject to a legal professional privilege, the obligation to report the tax arrangement passes on to the user, if the intermediary is not released from the confidentiality obligation by the latter. In this case, the intermediary is obliged to provide the user with information about the tax arrangement.An intermediary subject to a legal professional privilege shall report the tax arrangement himself only if it is a marketable tax scheme that may be implemented by or made available to more than one user and that does not contain data about the user.

Does the national law make reference to professional privilege or professional secrecy?

What is the difference, as per the national law, between professional privilege and professional secrecy?

To which categories of intermediaries does the professional privilege or professional secrecy apply?

In the context of the reporting obligation, under which conditions are the intermediaries entitled/obliged to make use of professional privilege or professional secrecy?

In cases in which professional privilege or secrecy applies, please describe the procedure for notification.

Does the national law provide specific conditions to waive professional privilege or professional secrecy?