Are regulations affecting e-commerce too late?

The question contained in the title of this Article is purely rhetorical, which seems uncontested. Moreover, if these provisions are not implemented in due time, this situation may significantly impede the adaptation of e-commerce businesses to them. Therefore, the following article will not be about discussing the regulations (for this there will come a time when they will be implemented into the Polish legal order), but about the unpleasantness of some Polish entrepreneurs.

What are the rules? This concerns the provisions of the so-called e-commerce package, and in particular the extension of the MOSS procedure[1], i.e. OSS (One Stop Shop) and IOSS (Import One Stop Shop)[2].

What is meant by these abbreviations and their names will be briefly presented below, however, at this point you should focus on another issue. Namely, the above mentioned e-commerce package will be introduced into the Polish legal order through the Act amending the Act on Tax on Goods and Services and some other laws.

This obligation derives from the provisions adopted Directive 2017/2455 amending Directive 2006/112 and Directive 2009/132 for certain obligations arising from value added tax in the case of the provision of services and the sale of distance goods, and Directive 2019/1995 amending Directive 2006/112 as regards the rules on distance selling of goods and certain national supplies of goods.

A taxpayer calling the National Tax Information hotline to clarify issues related to the OSS procedure – in other words, trying to prepare for the upcoming changes – only heard that he could not be given information because the regulations had not yet been passed

The problem is that for the moment of writing this text (18 June 2021), The abovementioned Act is currently being dealt with by the Senate (which will probably vote on it on the same day), and the implementation of EU legislation must be carried out to 1 July 2021 Already abstracting from the possibility of the Senate imposing amendments, so the bill will re-enter the Sejm, assuming the President will sign it in an accelerated manner, in first the moment available after approval by the Sejm or Senate, the vacatio legis of these changes will not comply, accepted as standard, period 14 days. According to Article 4(1) Act of 20 July 2000 of the publication of normative acts and certain other legal acts – "Normative acts, including rules in force, published in official journals shall enter into force after the expiry of the fourteen the days from the date of their publication, unless the normative act concerned specifies a longer period.’ Although section 2 the same provision can be read that: ‘In justified cases, normative acts, subject to section 3, may enter into force less than fourteen the days, and if the important interest of the State requires the immediate entry into force of the normative act and the principle of a democratic rule of law to be without hindrance, the date of entry into force may be the date of publication of that act in the Official Journal.’, but what is different is the important interest of the State and what is different is simple negligence.

Returning to the procedure itself and the abbreviations used above, it should be briefly explained what it will consist of. According to the government side[3] The OSS procedure, which will replace the MOSS procedure, will allow:

• 1) extend the catalogue of services to be covered by the procedure,
• 2) to introduce intra-Community distance selling of goods,
• 3) to introduce domestic supplies through an electronic interface.

By contrast, the IOSS procedure will be covered by distance sales of goods imported from countries third or territories third in a consignment of a value not exceeding 150 EUR.

From 1 July 2021 a taxable person, i.e. an entrepreneur who meets the conditions to register for the OSS procedure, i.e. exceeding the threshold of the amount of sales 10,000 EUR, Once registered, it will be easier to declare and pay the tax due on goods and services in other Member States. The assumptions look good, but an accurate evaluation will only be possible after the introduction of the legislation.

The problem, as mentioned above, is the need for entrepreneurs to prepare for these changes. But how are they supposed to do this when it is not even known what final form of EU solutions will take in Poland? The above-mentioned government website includes, among other things, the document "A guide on a single VAT service point".

The document, as it was written in his introduction, is not exhaustive and is not completed either, and it is therefore not said that the taxpayer will find an answer to the question which concerns him.

The problem arises also in the registration, or actually in the absence of it. From 1 April Registration applications may be submitted for the abovementioned procedures. However, according to the government,[4], the above registration is not equivalent to registration for the procedure.

Moreover, the entrepreneur concerned will be registered only after the conditions which will be laid down in the legislation not yet introduced, which must be passed at the latest by 1 July. Sounds good? Apparently for the Polish legislator – yes.

And finally – a purely anecdotal example, therefore without any evidence value, but to some extent showing the absurdity of late regulation. A taxpayer calling the National Tax Information hotline to explain issues related to the OSS procedure – in other words, trying to prepare for the upcoming changes – only heard that information could not be provided because the legislation had not yet been passed. The only thing he can do in such a situation is read the aforementioned Guide.

It should be stressed with all determination – this is not the fault of the employees of the National Tax Information. This is due to the negligence of the Polish legislator and the insufferability of the relevant and inexhaustible rules which will affect many Polish entrepreneurs.

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