The Chief Administrative Court issued a judgment stating that the Director of the CIS should not refuse to issue individual interpretations where taxpayers ask questions about the application of the rules on reporting tax schemes.
Since the introduction of rules on reporting tax schemes, they have raised a number of concerns for taxpayers and therefore, with their introduction into the Tax Ordinance There were requests for individual interpretations.
However, the Director of KIS took the view that the provisions on reporting tax schemes could not be the subject of an individual interpretation, since in the light of the provisions Tax Ordinance on the issuance of individual interpretations, these interpretations may relate only to provisions of tax law, understood as provisions of tax laws, provisions ratified by the Republic of Poland of double taxation agreements and ratified by the Republic of Poland of other international agreements concerning tax issues, as well as provisions of implementing acts issued under tax laws.
In the opinion of the Director of KIS, a request for interpretation of tax law may be subject to a legal assessment of the facts or future event concerning the applicant (interested) under substantive tax law.
In the meantime, the provisions on reporting obligations (MDRs) are not substantive tax legislation, so the Director of KIS considers that they should not be the subject of decisions issued by the interpretative body.
If taxpayers are not able to obtain individual interpretations on matters relating to their obligations, the sense of the existence of institutions issuing individual interpretations will be called into question
The adoption of such an argument by the Director of KIS resulted in consistent refusals to provide information to the questions asked by taxpayers on the subject of reporting tax schemes.
Some taxpayers who have been refused to give interpretation referred complaints to the administrative courts, and in the case of decisions issued by the WSA, a discrepancy in the positions taken. Some cases before the WSA ended with the maintenance of provisions refusing to give interpretation of the MDR, and in other cases the WSA held that the provisions Tax Ordinance the rules for issuing an individual interpretation do not prohibit the interpretation body from resolving issues relating to tax schemes.
On 28 January 2021 The NSA issued a judgment in which the sentence of the WSA in Krakow was repealed and the order of the Director of National Tax Information, which was refused to the taxpayer to provide explanations concerning the application of the rules on tax schemes.
The justification for this NSA judgment is not yet available, but it is a significant step towards enabling taxpayers to obtain binding information on the application of tax schemes in their individual situation.
Many taxpayers find it difficult to make the right decision as to whether, in the case of their actions, transactions, planned and ongoing changes in cooperation with counterparties, the MDR rules should be applied and how.
This situation is affected by factors such as the novelty of the MDR theme in the Polish system, the ambiguous way in which the regulations are formulated and the extensive explanations of the MF, unfortunately still unsolvable many doubts of taxpayers.
In this situation, it is in a way understood by the Director of the CIS to avoid the need to resolve these new, problematic issues. However, if taxpayers are not able to obtain individual interpretations on matters relating to their obligations, the institution itself is called into question.
It seems that it is precisely the question of the application of the provisions of interpretation that will be the subject of requests for such interpretation.
Leaving an individual interpretation only as a tool to confirm a more or less fixed interpretation line, which is also an important aspect, but rather a secondary one, will mean a significant reduction in the usefulness of this tool.
We are looking at this judgment with particular interest, bearing in mind that, in addition to the MDR, there are other aspects of a similar nature – reporting or reporting obligations imposed under the laws governing the scope of the obligations of taxpayers, in which the Director of the CIS refuses to give individual interpretations.
one such topics are reporting obligations in the area of transfer pricing, e.g. the CBcR report.
It remains to be hoped, therefore, that the long-term effect of the NSA ruling that has just been issued will be that the Director of the CIS will take up these doubts and undoubtedly difficult substantive subjects concerning the obligations of taxpayers.
Source: NSA judgment of 28 January 2021, reference no. I FSK 1703/20.
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.