In March 2023 was announced the Regulation of the Minister of Finance with 16 February 2023 amending the Tax Information Regulation, which extended the deadline for, inter alia, the transmission to the tax authority of information on contracts concluded with non-residents, the so-called ORD-U form.
So far, the taxpayers had three months from the end of the tax year for which the form is submitted, and after the change, this is eleven months. The new term refers to the ORD-U forms submitted for the tax year starting after 31 December 2021 For most taxpayers this means that the ORD-U for 2022 should submit by the end of November 2023
Obligation to submit ORD-U information
According to Article 82(1)(2) Tax Ordinance (Journal of Laws of 2022, item 2651 as amended) legal persons, organisational units not having legal personality and natural persons engaged in economic activities are obliged to draw up and provide information on contracts concluded with non-residents within the meaning of foreign exchange law without a request from the tax authority.
This information in the form of an ORD-U form shall be submitted in accordance with the provisions of the Regulation of the Minister of Finance dated 24 December 2002 on tax information (Journal of Laws of 2017, item 68), if:
one of the parties to that agreement, directly or indirectly, participate in the management or control of the other party to the contract or has a share in its capital entitling at least 5% all voting rights, or
any other entity that is not a party to the contract shall, at the same time, participate, directly or indirectly, in the management or control of the entities that are parties to the contract or hold shares in the capital of those entities entitled, in each of them, to at least 5% all voting rights, or
the non-resident party to the contract has in the territory of the Republic of Poland an enterprise, branch or agency within the meaning of separate provisions
- and if the entity required to produce and provide information knew or could have known, with due care, that such shares were held or that the non-resident had a business, branch or representation in the territory of the Republic of Poland.
In case of points 1 and 2. The information shall include contracts concluded in the tax year with the same non-resident and the sum of receivables or liabilities resulting from those contracts has exceeded the equivalent 300,000 EUR; in the situation described Under point 3. The information shall include contracts where the single value of the claims or liabilities exceeds the equivalent 5,000 EUR.
The ORD-U form shall be sent to the head of the tax office competent for the address of the place of residence of the person drawing up the information.
Time limit
As already mentioned, the current ORD-U information can be submitted to the maximum eleven months after the end of the tax year for which the form is submitted. Therefore, the date when the tax year coincides with the calendar year is 30 November 2023
When the TPR relieves the obligation to provide information to the ORD-U
The obligation to draw up and provide information on contracts concluded with non-residents shall exceptionally not apply to legal persons, organisational units without legal personality and natural persons engaged in economic activities required to produce information on transfer prices under the rules. Article 23zf(1) Personal Income Tax Act (Journal of Laws of 2022, item 2647 as amended) and Article 11t(1) Corporate Income Tax Act (Journal of Laws of 2022, item 2587 as amended)
It should be noted that the exemption excludes the entities obliged to produce information on transfer prices which carry out controlled transactions in a given tax year. Under Article 23 Under section 2a Personal Income Tax Act, or Article 11k(2a) Corporate Income Tax Act.
It is therefore controlled transactions with entities from tax havens or foreign establishments located in the territory or in a country applying harmful tax competition. In this situation, taxpayers are forced to submit both the ORD-U form and the TPR information.
Example 1
Tax payer in the tax year 2022 has executed transactions with related non-residents. In such a case, he is obliged to draw up transfer pricing documentation and to submit TPR information, which means that by virtue of Article 82(1c) Tax Ordinance is exempt from the obligation to submit an ORD-U form.
Example 2
Tax payer in the tax year 2022 it has executed transactions with non-residents associated with related entities, including entities in tax havens. The taxpayer is required to draw up transfer pricing documentation and to submit both TPR and ORD-U information, as according to Article 82(1c) Tax Ordinance the exemption does not apply to taxable persons carrying out controlled transactions with entities from tax havens.