Due to the confusion that has escalated in the area of commercial property taxation, the Ministry of Finance since September 2018 conducted a tax consultation. As a result, explanations were published dated 11 December 2018, to help the courts and taxpayers resolve problems.
Many taxpayers are still waiting for a refund of large amounts of VAT. The cases in the courts, despite the positive rulings of the WSA for taxpayers, have not been resolved because there is no uniform position on many issues.
The tax explanations of MF indicate the conditions under which the property is an undertaking or an organised part of the undertaking.
As a result of the public consultation, criteria were developed to assess whether the supply of commercial real estate is taxed on VAT (supply of assets) or on civil law (sale of a company or an organised part of the enterprise).
According to Article 5(1)(1) VAT tax on goods and services shall be subject to the payment of the supply of goods, understood in the light of the Article 7(1) VAT Act as transfer of the right to dispose of goods as owner. According to Article 2(6) VAT Act means goods and parts thereof, as well as all forms of energy.
In the light of the above, the supply of commercial real estate constitutes, in principle, the supply of goods subject to VAT. In exceptional circumstances, the supply of commercial real estate may be considered as non-taxable, i.e. where the conditions for the qualification of commercial real estate (which is the subject of delivery) are met as an undertaking or an organised part of the undertaking.
Full text of explanations HERE
Author:
Katarzyna Kołbuś - Editor leading RB Magazine. From Over 10 years related to industry press, including the Financial Gazette and portal ipip.com.pl, which is devoted to finance, taxation, law, politics and the economy. She graduated from Polish philology at the UMCS and the language editing of the text at the University of Warsaw.