Escape from the Polish Order? The tax office controls the companies

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The provisions of the “Polish Deal” caused an avalanche of inquiries from entrepreneurs who began to look for ways to optimize their taxes. It is not only about the increase in the health insurance premium, but also about a number of changes that may directly or indirectly affect the activities of many companies – points out Maciej Oniszczuk, a lawyer specializing in legal and tax consultancy.

Oniszczuk adheres to, because failure to fulfill the obligations arising from the so-called GAAR clause can cost you dearly. By the end of September 2020, 20 proceedings were closed and 12 companies were accused of circumventing the tax law. They had to pay back as much as 82 million in back tax. However, matters significantly accelerated and the latest reports by the Ministry of Finance show that only in the third quarter of 2021, 25 proceedings were initiated regarding violations of the GAAR clause. Most, as many as 16, concern matters related to CIT, and in nine cases they are problems with PIT. The first decisions regarding the tax surcharge have already been taken.

– The increased activity of the National Revenue Administration is not surprising and I do not see a coincidence that it is on the day of signing the bills included in the “Polish Deal” that we learn about increased inspections. This is to be a factor freezing any actions that would lead to the relocation of the company from Poland. We are also approaching the limitation period for the first cases covered by the clause, so the activities of the services have gained momentum – emphasizes Maciej Oniszczuk.

The tax avoidance clause in the Polish legal system has been in force since 2016, and the regulations were additionally amended three years later. Entrepreneurs have to take into account problems if the tax authorities discern that the change of the method of settlements or the transfer of the company to another country takes place only for the purpose of obtaining a tax benefit or it is one of the main goals.

– The change of the place of business cannot be fictitious, so the idea of ​​running a company registered, for example, in Cyprus from behind a desk in Warsaw, will not pass – comments Oniszczuk.

The tax authorities may interpret the fictitiousness of actions from many activities, e.g. when the entrepreneur bears an economic risk that exceeds the expected non-tax benefits to such an extent that it should be assumed that a reasonably acting entity would not choose this course of action. Officials will also look at situations where an entrepreneur starts cooperation with an entity that does not conduct real economic activity or has its seat or place of residence in a country or territory applying harmful – according to officials – tax competition.

– Moving the company outside Poland must first of all have a business justification and although the moment of entry into force of the “Polish Deal” tempts to change twice, all options should also be thoroughly analyzed – emphasizes Maciej Oniszczuk.
It is worth emphasizing, however, that the tax office may be interested not only in relocating the company outside Poland, but also in activities inside the country, such as a sudden change in the method of settlements.

Importantly, the entrepreneur is not protected by the previously obtained tax interpretation. Ultimately, KAS may make a different decision, to the detriment of the taxpayer. An entrepreneur, on the other hand, may apply to the director of the National Revenue Administration for a security opinion, but the application for the document itself costs PLN 20,000. A positive opinion will not be issued if the officials find that the circumstances presented in the application indicate that the tax avoidance regulations do not apply to the tax benefit, adds the expert.


About Eric Wilson

The variety offered by video games never ceases to amaze him. He loves OutRun's drifting as well as the contemplative walks of Dear Esther. Immersing himself in other worlds is an incomparable feeling for him: he understood it by playing for the first time in Shenmue.

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