Poland

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.

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.

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

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.

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

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.

There are no deviations from the Directive.

There are no deviations from the Directive.

There are no deviations from the Directive.

There are no deviations from the Directive.

There are no deviations from the Directive.

There are no deviations from the Directive.

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.

National tax arrangements are subject to report.

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

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.

There are no deviations from the Directive.

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.

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.

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.

There is no specific guidance.

There is no specific guidance.

There are no deviations from the Directive.

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.

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

There are no deviations from the Directive.

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.

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.

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.

No distinction is made between intermediaries and users.

There are no sanctions for redundant reports.

The penalties do not differ.

No other disclosure regimes exist.

There are no deviations from the Directive.

There are no deviations from the Directive.

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.