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Nexia Advicero | TAX UPDATE | April 2024

  1. Mandatory e-invoicing – summary of consultations
  2. Secondment of employees – what does not constitute taxpayer income?
  3. New fuel tax?
  4. New reporting obligations for digital platform operators – implementation of the DAC-7 Directive
  5. Real estate used by a company for its own purposes can be considered an organized part of enterprise
  6. Health contribution for entrepreneurs – proposed changes

1. Mandatory e-invoicing – summary of consultations

The Ministry of Finance has published an official project of statutory changes regarding the National System of e-Invoices. The proposed solutions are partly the result of tax consultations that took place in recent months with the participation of both taxpayers and tax advisors.

In the proposals we can find solutions such as:

  • issuance of B2C invoices and self-identification of the purchaser allowing access to an e-Invoice,
  • sending attachments along with e-Invoices for certain industries,
  • offline mode introduced during the transition period, which will be made available for use by all taxpayers,
  • changes to income taxes that will bring the requirements of the invoice as proof of deductible expenses into line with the terms of the National System of e-Invoices. As a result, the obligations in the National System of e-Invoices of the buyer and seller will be balanced.

In the submitted draft, the MF also postpones:

  • mandatory National System of e-Invoices for invoices issued via cash registers,
  • penalties for non-compliance with National System of e-Invoices obligations,
  • the requirement to provide the National System of e-Invoices number in payments for e-invoices and for invoices for which payment is made under the split payment mechanism.

For more information, please visit our blog and feel free to contact us directly for comprehensive and effective implementation of KSeF regulations.

2. Secondment of employees – what does not constitute income for the taxpayer?

The Supreme Administrative Court, in a judgment dated January 9th, 2024 (ref. II FSK 434/21), ruled that the provision of overnight accommodation or the covering of transportation costs by the employer does not constitute PIT income for delegated employees.

In its request for an individual interpretation, the company presented the position that the employee’s use of free accommodation provided by the company during the performance of employee duties abroad does not give rise to PIT income. Originally, this position was considered correct, but the head of the National Fiscal Administration, in an amending interpretation, rejected this opinion and ruled that income would arise on the part of the employee. The company challenged the interpretation. The Provincial Administrative Court rejected the complaint and only the Supreme Administrative Court considered it.

The Supreme Administrative Court’s judgment confirmed that the company’s position was correct. In the justification of the judgment, the court stressed that in the decision it is necessary to analyze in whose interest the offered benefits are covered – the employer’s or the employee’s. In doing so, the Supreme Administrative Court referred to the judgment of the Constitutional Court of July 8th, 2014. (K 7/13).

In addition, it found that the facts presented by the company clearly indicated that the employee benefits in the interest of the employer, through the implementation of the concluded contract. Therefore, it is the employer who obtains the benefit.

The SAC also added that in accordance with Directives 96/71 and 2014/67 of the European Parliament and the Council, which define what should be included in the wages of posted employees, the employer’s expenses for providing accommodation to posted employees are not included in the definition of wages. The analogy is with travel (transportation) or food expenses of such employees.

Since this is not the first identical judgment in a similar case, one can begin to speak of the consolidation of a new line of jurisprudence, which stands in complete opposition to the previous view expressed by the Supreme Administrative Court on this issue for the past years.

Therefore, we encourage you to analyze the settlement situation of your expatriate employees, and if you have additional questions, we will certainly support you in this.

3. New fuel tax?

The Greenhouse Gas Emissions Trading Scheme Directive – the so-called Green Directive (2023/959) will result in additional levies on coal and car fuels.

The Directive indicates two scenarios. The first is to impose obligations on coal depots, petrol stations and gas suppliers, such as they have today on factories or combined heat and power plants (emissions certificate trading scheme). The second indicates the imposition of an equivalent in effect tax on these fuels.

Either option will certainly increase the burden on energy carriers.

The draft implementation law is expected to be published by the end of June 2024, at which time it will be possible to prepare for one of the options accordingly. If you are interested in this issue – please do not hesitate to contact us.

4. New reporting obligations for digital platform operators – implementation of Directive DAC-7

As early as July 1st, 2024, regulations will come into force implementing the DAC-7 Directive (2021/514), which introduces new obligations for e-commerce platform operators.

The new law will apply to those platforms through which users can sell goods, rent property and means of transportation, and provide personal services. Examples include: Vinted, OLX, Otodom or Allegro.

Under the regulations, operators will be required to:

  • Collect and report to the Head of KAS information on rented properties and sellers who performed more than 30 transactions in a given calendar year or received remuneration of more than EUR 2,000 for such transactions,
  • Complete (draw up) a due diligence procedure to identify the reported data.

The scope of the reported information on vendors includes:

  • basic data of the seller, i.e. name / company name, address, PESEL or NIP, date of birth / number in the relevant business register,
  • the amount of total remuneration for each quarter of the reporting period,
  • the number of transactions carried out for which the seller received remuneration,
  • in the case of real estate: land register numbers and the number of days during the reporting period for which the property was made available.

In case of non-compliance with the new provisions of the law, operators may be fined up to PLN 1 million.

Thus, it is worth taking care now to implement measures to mitigate the risk of tax/penalty consequences associated with the implementation of the DAC-7 Directive.

5. Real estate used by a company for its own purposes can be considered an organized part of enterprise

The ruling of the Provincial Administrative Court of March 24th, 2024, ref. I SA/ Kr 72/24 indicates that real estate used by a company for its own needs (in this case, for production) may be considered an organized part of the enterprise.

According to the position presented by the Provincial Administrative Court, the fact that production processes take place in the production hall does not mean that the production hall in question must be assigned to the production department. As a result, the assets spun off as a result of the spin-off can be considered an organized part of the enterprise and the spin-off operation carried out is not subject to VAT.

This ruling is of particular importance, as it changes the previous line of rulings by courts and tax authorities. In the tax interpretation in the present case (mark 0113 -KDIPT1-2.4012.382.2023.1.AJB), the Director of the National Fiscal Information ruled that it is impossible to spin off an organized part of enterprise in the form of a part of real estate if the real estate in question is used for the company’s needs. He also pointed out that if a building dedicated to the company’s own operations does not generate revenue, the real estate department is not financially separated. This, in turn, means that the conditions for recognizing the hall building as an organized part of enterprise are not met.

Although the judgment is not yet final, it is worth bearing in mind that this approach may also be accepted. Nevertheless, this judgment shows that in any case it is worthwhile to ask the tax authority for an individual interpretation of tax law – we will be happy to support you in this regard.

6. Health contribution for entrepreneurs – proposed changes

On March 21, 2024, the Ministry of Finance presented details of changes to the health premium for entrepreneurs, to take effect on January 1st, 2025.

Firstly, it is planned to restore the flat-rate health contribution for entrepreneurs settling their accounts on a general basis (tax scale). It will amount to about PLN 310 per month (9% of 75% of the minimum wage). According to data provided by the Ministry of Finance, the new regulations would save taxpayers between PLN 100 and PLN 530 per month, compared to the current settlement system.

For entrepreneurs settling using the 19% flat rate, the health contribution would also be PLN 310, provided their income did not exceed 2 times the projected average salary. If this amount is exceeded, the contribution will be increased by 4.9% on the excess. In addition, entrepreneurs using the flat rate will be able to pay the premiums due as advance payments.

Regarding the plans in this regard for an entrepreneur taxed on a flat rate from registered income – this will depend on revenues determined as follows:

  • entrepreneurs with monthly revenues not exceeding 4 times the projected average salary will pay (under the conditions of the year 2025) – about PLN 310 per month (9% of 75% of the minimum salary by which they will gain due to the reduction of the basis for calculating the health contribution),
  • entrepreneurs with monthly revenues exceeding 4 times the projected average salary of an entrepreneur – will pay the minimum contribution (in the amount of 9% from 75% of the minimum salary) and 3.5% on the excess over 4 times the projected average salary.

In addition, income from the disposal of fixed assets will not have to be reported in the basis for calculating the health contribution.

Moreover, it is planned to repeal the deductibility of (part of) health premiums in PIT.

Although the planned regulations have not yet come into force, it is already worth bearing in mind the direction the MF is taking, the effect of which is intended to contribute to more favorable tax settlements for all entrepreneurs conducting business under Polish law. This may be important from the perspective of planning financing in the long term for businesses.

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