The subject of the possibility of a liability being regulated by another person (a different entity) than the taxpayer or tax payer has been controversial for many years.
On the one hand, to the taxpayer who, for various technical reasons, were not able to settle the obligation from their own account, in order to avoid default, paid, for example, from the account of a shareholder, a related company or another person.
On the other hand, to the tax authorities have consistently refused to recognise such transfer as fulfilling the obligation and therefore the taxpayer remained behind and the person who made the payment without the funds on the account. Day 14 April 2021 a judgment was given by the Supreme Administrative Court, which may alter this trend.
The NSA maintained the position of the Provincial Administrative Court in Warsaw dated 23 May 2018, reference no. III SA/Wa 2286/17, at the same time dismissing the cassation complaint of the Director of National Tax Information.
The present proceeding was linked to an application for an individual interpretation concerning the possibility for a person other than a tax payer to pay the tax.
The tax authorities argued that only the payer can pay the tax and that the payment of the tax by the service provider (the advisory company) did not result in the tax obligation on the payer being terminated, this position was not met with the approval of the Administrative Courts.
It should be considered that, under the current rules, it is possible for the payer to ‘comply’ with the entity third, However, this refers only to the actual payment of the tax, not to the payment of the tax
The legal dispute has led to correct interpretation Article 59(2)(1) Act dated 29 August 1997 Tax Ordinance (i.e.: Journal of Laws of 2017, item 201 as amended, hereinafter referred to as "O.P.") and Article 60(1)(2) in conjunction with Article 60(2) O.p.
first the above provisions provide that the obligation of the payer or collector expires in full or in part as a result of the payment. In turn according to Article 60(1)(2) O.p.
the date of payment of the tax is considered to be the date on which the taxpayer's bank account, the account of the taxpayer in the cooperative savings and credit account or the payment account of the taxpayer in the payment institution, the small payment institution or the electronic money institution is debited on the basis of a transfer order and, in the case of payment by a payment instrument other than a transfer order, hereinafter referred to as ‘the payment instrument’, the date on which the authorisation of the payment transaction in question is confirmed under Article 40(1) Act dated 19 August 2011 on payment services (Journal of Laws of 2020, item 794).
The Supreme Administrative Court indicated that under Article 60 1 point 2 and section 2 O.p.
as regards the time limit and the form of payment of the tax refers to a separate issue from the question of the expiry of the payer's obligation by paying the tax on which it provides Article 59(2)(1) It is important that the payment is made for the payer by another entity from the funds collected by the payer and only transferred, transferred through a person called "the messenger" or "the contractor" or "the transferor of the funds of the payer".
It is important that the funds under the payment are paid by taxpayers and transferred to the intermediary by the payer and that the tax authority to which the payment of the payer is made has knowledge of this.
The NSA, however, added that it is necessary to distinguish between the situation in which the payment is made by a person third (in the common sense as well as the legal language, that is, the person to whom the tax-law relationship between the tax creditor and the taxable person or payer does not concern, and not the one of which it provides Article 107(1) O.p.), from its assets and in replacement, i.e.
instead of the taxpayer or the payer from the situation where such payment is made only by the authority of the latter and by their means. Moreover, the NSA stated that it is clear that the tax obligations laid down in the tax laws, including those charged to the payer, are public-law.
They are therefore personal obligations and cannot be abolished by civil law contracts concluded between a taxpayer or payer and a person third.
In conclusion, it should be considered that under the current rules it is possible for the payer to ‘comply’ with the entity third, However, this refers only to the fact that the tax is actually paid, not to the payment of the tax, and therefore it is still not possible to pay the tax by an entity other than the payer or the collector.
Author: Leszek Dutkiewicz, partner Russell Bedford Poland. Associated with the company from 2011. Director of RBP office in Katowice. In years 2008 – 2011 worked for leading consulting companies (Ernst&Young, KPMG, BDO) providing tax advisory services.
He specializes in tax and economic law, primarily in international tax law, tax proceedings, VAT and transaction prices. Author of a publication on tax, civil and international law issues. Lecturer in tax law training. He has legal education, in 2008 graduated from the Faculty of Law and Administration of the Jagiellonian University.