As regards the international exchange of information and legal assistance in tax collection, the essential importance should be attributed to the provisions Article 27(28) double taxation agreements. Some of these contracts were concluded by Poland with countries applying special tax advantages which were not expressis verbis mentioned in the MF Regulations of 9 April 2013, but these are jurisdictions giving far-reaching possibilities to optimize fiscal charges.331 In accordance with the provisions Article 7 double taxation agreements a taxpayer resident in that country will pay income tax on its territory at the rates in force there, including, in principle, on revenues obtained in Poland, but from second parties under the same agreement, the tax authorities of that country are obliged to cooperate with the Polish tax authorities and to assist in collecting tax claims.
The fact of the exchange of information in tax and criminal-tax matters constitutes a good in itself from a state perspective, as it allows the observation and analysis of the methods of using the laws of these countries to avoid taxation in Poland, of course only on the line of relations with residents of these countries. It requires that the Polish tax authorities have no legal interest, and thus no legal basis, to obtain any information about the foreign company's turnover or transactions, except those concerning a direct relationship with the Polish taxpayer. Thus, from the perspective of the Polish tax office, it is impossible to trace further transactions of such a foreign company, which usually concern trading with offshore entities. In accordance with the provisions Article 27(1) The competent authorities of the Contracting States shall exchange the information necessary for the application of the provisions of the Agreement and the internal legislation of the Contracting States concerning the taxes covered by the Agreement in so far as the taxation provided for therein is not contrary to the Agreement. Exchange of information is not limited by provisions Article 1 contracts that regulate the subject-matter of the contract. Any information obtained by a Contracting State shall be secret on the same principle as that obtained under its domestic legislation and shall be provided only to persons and authorities (including judicial or administrative bodies) dealing with the establishment, collection or collection of the tax to which the contract relates, or to bodies examining the remedies in respect of those taxes. These persons or authorities may use the above information only for these purposes. They may make that information available in judicial proceedings or to issue decisions. The information obtained shall be treated as secret if requested by the contracting State which transmitted it. This provision quite generally regulates the principles of international exchange of information on the basis of double taxation agreements, much more important in terms of effective exchange of information is the provision Article 27(2) double taxation agreements which provide that the provisions section 1 may in no case be interpreted as if they had committed one from Contracting States to:
- • the application of administrative measures which do not comply with the legislation or administrative practice of that or second countries,
- • to provide information which would not be available under its own legislation or under normal administrative practice; or second the contracting State,
- • the provision of information which would reveal commercial, economic, official, industrial or professional secrecy, or the mode of business or information which would be contrary to public policy (ordre public).
It requires that the Polish tax authorities have no legal interest, and thus no legal basis, to obtain any information about the foreign company's turnover or transactions, except those concerning a direct relationship with the Polish taxpayer.
This regulation gives rise to fundamental restrictions on the exchange of information under bilateral double taxation agreements, as the limitations of local legislation of any of the Contracting States are as if ex-lege applied under double taxation agreements.
In the case of Anglo-Saxon jurisdictions, this is often tantamount to the inability to obtain certain information or to obtain – from the perspective of the Polish tax – incorrect information, which will in particular concern information about the actual beneficiaries of local companies hidden behind the trust structure.
In that case, the competent authorities second The contracting State will provide the Polish side with information from the public register of companies in which the trustees will be listed (i.e. nominated directors and shareholders).
In fact, most double taxation agreements include Article 27 additional provision which states that the provisions of the earlier provisions Article 27 in no case shall it be construed as authorising a Contracting State to refuse to provide information solely because the information is in the possession of a bank, another financial institution, a representative, an agent or trustee or information relating to ownership relationships in a given entity, if the State concerned cannot obtain that information under its internal legislation, or if the acquisition and transmission of that information would violate the public policy or administrative practice of the contracting State concerned, that information shall not be communicated to the Polish side.
As a result, the existing provisions of double taxation agreements do not constitute an effective legal barrier in the use of international tax optimization methods by Polish taxpayers.
A separate provision of certain double taxation agreements, the ratio of which is aimed at the mechanisms of international tax planning, is a provision Article 23a regulating the reduction of contractual advantages in certain cases of the acquisition of contractual advantages and of artificial structures used in international tax planning mechanisms.
In accordance with the provisions of that provision, the benefits provided for in the contract do not benefit where the main objective can be considered to be: one the main objectives of the transaction were to obtain benefits which could not otherwise be achieved.
This provision also applies to entities that do not carry out actual business activities. This regulation constitutes a novelty in double taxation agreements, appearing in newly signed or renegotiated agreements, which makes it difficult to rely on the practice of applying it.
Undoubtedly, the language editing of this provision raises some doubts as to the considerable level of its generality, as it is impossible to determine precisely what purpose of a specific arrangement of civil relations is the main objective or one From the main targets? Where's the border between the main target and the side target?
Whether the establishment of cooperation with a country-specific counterparty can be motivated by tax considerations as the principal or one of the main objectives of this action?
Is such a linguistic treatment of the anti-abuse clause aimed in principle at the acquisition of contractual advantages in accordance with the provisions of the Constitution of the Republic of Poland in the light of the judgment of the Constitutional Tribunal of 11 May 2004, in which the CCC stressed that "As a violation of constitutional requirements, it is necessary to assess such vague and vague formulation of a provision which creates uncertainty for its addressees about their rights and obligations.
It creates an overly broad framework for authorities applying such a provision, which must in fact replace the legislator with matters which are not clear and vaguely regulated.
The legislator cannot, by vaguely formulating the text of the provisions, leave the authorities to exercise excessive freedom in practice to determine the subject matter and the constitutional limitations of the individual.
(...) The CCC argues that exceeding a certain level of ambiguity of the legal provisions may constitute a self-evident indication of their incompatibility with both a provision requiring regulation of a specific area, e.g.
restrictions on the exercise of constitutional freedoms and rights (Article 31(3) sentence 1 Constitution), as well as expressed in Article 2 Constitution rule of law.”?
This provision, although contained in a higher order of legislation than national laws, must comply with the highest law of the Republic of Poland, which is the Constitution.
Moreover, the term ‘recognitionable’ used in the above regulation refers to authorities applying tax law, which could thus arbitrarily enter the sphere of civil law, interpreting that, in the present case, ‘unquestionably’ other advantages would not be expected, which would mean that tax authorities would refuse to apply the provisions of the double taxation agreement to a resident entity in question.
one with the Contracting States and having a specific business relationship in the other contracting country. However, these doubts must be confirmed or not confirmed in the activities of the tax authorities, growing into relevant case law so that a more unambiguous and practical analysis of the provision can be made.
Article 23a individual double taxation agreements.
Agreements on the exchange of tax information with tax havens are a particular category of international agreements.
In view of the potential risks to the tax revenues of the State which arise from the absence of international cooperation in tax and criminal-tax matters from countries (territories) whose legal systems are considered to be applying harmful tax competition, the legitimate objective of the State is to extend the scope of this cooperation.
This is reflected in the fact that Poland, but also by a number of other countries, including those belonging to the EU, has signed agreements guaranteeing on a reciprocal basis a certain extent of international tax cooperation by countries (territories) considered to be applying harmful tax competition.
Poland has signed so far 14 contracts of which only 6 It's in effect. These agreements guarantee the scope of international cooperation in tax and tax matters required by the OECD. In addition, Poland has signed 10 other international tax agreements relating exclusively to taxation of personal savings income.
Agreements guaranteeing “full” the scope of international tax cooperation required by the OECD are the legislative cripple of the OECD Model Tax Information Agreement with 2002 332
By Sound Article 1 and Article 3(1) those agreements, the Contracting Parties undertake to exchange information in widely covered tax matters. The information covered by this agreement is to be exchanged whether the requested party needs it for its own tax purposes. Furthermore, the requested party shall be required to apply all the measures necessary to collect the information covered by the request, in order to transmit it to the requesting party, even if the information is not needed to the requested party for its own tax purposes. The scope of the information covered by the above-mentioned agreements is defined broadly in their Article 5(4) and which includes particularly important information from attorneys and trustees, information on trusts, foundations and investment funds. Of course, so that this information can be effectively communicated to the Polish website, second The contracting authority must be able to obtain it under its national legislation, which is generally not possible, as tax havens knowingly renounce their tax power in relation to international companies, thus having no knowledge of their functioning. The rules and deadlines for reporting information under the above-mentioned agreement are consistent with the OECD Model Agreement on Exchange of Tax Information. Regulations also deserve attention Article 7 agreements with the Isle of Man, which regulates the possibility of refusing an application for information, which is acceptable when:
- • the application was made not in accordance with the contract
- • the requesting party has not used any available means in its territory to obtain information, except where the application of such measures would entail disproportionate difficulties, or
- • disclosure of the requested information would be contrary to public policy.
In addition, agreements on the exchange of information in tax matters with tax havens do not require contracting parties to:
- the provision of information constituting any commercial, economic, industrial or professional secret or any mode of business of the undertaking, provided that the information covered by the contracts in question (Article 5(4) contracts) will not only be treated as such a secret or a mode of activity because of this fact,
- to obtain and provide information which discloses confidential information between the client and the lawyer, counsel or other legally authorised representative, where such information has been produced for the purpose of seeking or providing legal advice or produced for use in existing or considered proceedings.
It should be stipulated that Contracting Parties may refuse an application for information where it is not possible to obtain it under the legislation of the requested party or in the normal administrative practice of that party.
The requested party may also refuse the application if the requesting party requests this information for the purpose of applying or introducing its own tax legislation or any related requirement that would lead to discrimination against a citizen of the requested party compared to a citizen of the requesting party who is in the same circumstances.333 Therefore, since local administrative practice, local legislation and public order, in principle, prohibits the disclosure of any information relating to trust structures, the actual beneficiaries of such structures, regardless of their legal form, as well as information relating to accounting, auditing, any record of transactions, information about board members and resolutions of the board of directors of international companies, it is impossible to provide any such information to other countries (in this Poland).
The effective importance of the above-mentioned agreements differs significantly from that of the legislator.