Cash pooling within the capital group requires tax transfer pricing documentation. This results from the interpretation of the individual Director of the Tax Chamber in Warsaw on 29 December 2016 The signature. 1462-IPPB5.4510.992.2016.1.JC.
The applicant for the interpretation presented its own position that cash pooling within the capital group is not subject to the tax obligation of transfer pricing documentation, since such an operation cannot be considered a transaction within the meaning of the Corporate Income Tax Act:
„The term 'transaction' does not have a legal definition(...) should be used for the dictionary meaning that, in the scope in question, the commercial operation concerning the purchase or sale of goods or services or the trade agreement for the purchase or sale of goods or services must be considered to be a transaction; the conclusion of such a contract’
The applicant argued that cash flow and related interest payments cannot be considered as a service.
He also cited several individual interpretations from years 2011 a 2013, which indicated that there was no documentation obligation in similar cases.
The tax authority assessed this position as incorrect:
„The cash pooling agreement was not regulated in the Polish legal system and is therefore a so-called non-named contract within the meaning of civil law. However, given the nature of the agreement and its objectives, it should be concluded that it has characteristics similar to the loan agreement’
In a similar tone, the WSA stated in the judgment of 13 September 2016, reference no. I SA/Gl 362/16 and the NSA in its judgment of 26 July 2016, reference no. II FSK 991/16, who ruled:
„the actual purpose of the cash-pooling agreement is to make money available between the entities in the group and to benefit from interest. This means that, under the contract concluded, its participants carry out transactions, (...) and therefore, if they exceed the statutory amounts described in Article 9a(2) they shall be required to draw up appropriate tax records for such transactions."
The tax authority’s position points out that in the present case, it was necessary to examine the real purpose of the cash pooling operation and not only the definition of the dictionary concept of the transaction.