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Tax changes in Poland 2019

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Decrease of the CIT rate

The CIT rate is decreased to 9% for taxpayers whose income in the current tax year does not exceed the PLN equivalent of EUR 1.2 million (if they have the status of small taxpayers and their share of income in revenues does not exceed 33%). The reduced rate does not apply to income from capital gains. This rule also does not apply in 2019 to companies incorporated (divided) after 20th of November 2018. These kind of companies can use this rate from the beginning of the third taxable year.

 

Innovation (IP) box

The 2019 Tax Bill introduced into the Polish legal system preferences for innovation activities already available in other countries as Intellectual Property Box, Patent Box or Knowledge Development Box (e.g. the Netherlands, Great Britain, Ireland, Luxembourg, Hungary or France). The preferential treatment is to cover revenues from commercialization of created, developed or improved intellectual property rights (e.g. patent, protection law on invention, the right to a computer program, the registration of a medical or veterinary product). Such income is to be taxed with a preferential 5% PIT or CIT rate. The purpose of the regulation is to increase the attractiveness of Poland as a place for conducting R&D activities, supporting the development of companies investing in new technologies.

Income eligible for the reduced tax rate will be qualified income calculated as the product of income obtained from license fees or other receivables related to the use or sale of intellectual property rights and a special indicator calculated depending on the types of costs incurred for research and development (the higher the share of costs own research and development works or the results of such works purchased from unrelated entities, the lower will be the tax base).

The prerequisite for using the preferences is the requirement for the taxpayer to conduct R&D activities directly related to the creation, commercialization, development or improvement of intellectual property right. It will also be necessary to keep detailed accounting records.

 

Exit tax based on EU Directive 2016/1164 (ATAD)

2019 Tax Bill is also to introduce taxation of unrealized capital gains in the case of transfer of assets, change of tax residence or taxpayer’s permanent establishment outside the territory of the Republic of Poland. Exit tax is applicable both to legal and natural persons. Exit tax will also apply in case of certain transfers of assets to other persons or entities.

The taxable amount is to be the surplus of the market value of assets, with respect of which Poland would lose taxing rights, over their tax value. Exit tax will be charged at a PIT/CIT rate of 19%. Only in PIT, if the tax value of an asset is not determined, the rate will be 3%. The obligation to submit a declaration and pay tax will have to be fulfilled by the seventh day of the month following the month in which the event triggering exit tax occurred. Under certain conditions, taxpayers may be able to apply for payment in installments for a period not exceeding 5 years.

 

WHT collection

The 2019 introduced fundamental changes in collection of withholding tax (“WHT”) in Poland (and also in the WHT agent liability for unpaid tax). These changes are to replace the tax relief mechanism (application of WHT reduction by the WHT agent at source e.g. when paying interest) by tax refund mechanism. This means that the tax is collected by the WHT agent in full amount without the application of exemptions resulting from the Polish law and double tax treaties, and the taxpayer may receive (partial) WHT refund after proving the right to apply preferential rate.

The new rules apply when payments to one recipient exceed the amount of PLN 2 million in one tax year. The CIT  Act also provides for other solutions to remain in the tax relief system. Due to the fact these rules oblige all tax payers in 2019 and were intrudced very late Polish government postponed the deadline of introduction till 1st of july 2019.

What does it mean in practice?

From the 1st of July we have to pay 20% of WHT to the polish tax authorities ( even if agreements about avoidaince of duble taxation have different rates) and 80% pay to the beneficiary. It relates all payment above the limit of 2 mln PLN to each beneficiary.

How to avoid the obligation?

We have to gain two documents:

  1. Certificate of residency in original
  2. Declaration (WH-OSC) signed electronically by all members of the Board which has to be sent to the tax authorities before realization of the payment

Please remember these rules apply to all payments (intangible services, dividends, loan interest) above 2 000 000 PLN to one entity.

The amendments also introduced changes to the definition of the beneficial owner, which include, among others, the requirement to conduct genuine business activity in the country of its residency (as defined by the Polish CFC regulations) by an entity receiving payments from a source in Poland.

 

Mandatory disclosure rules

Changes of Polish tax law occured also in the scope of additional reporting. There was also introduced an obligation to inform the head of the National Tax Administration about the details of applied tax schemes. The reporting entities will in principle be intermediaries (advisory entities called promoters – tax advisers, legal advisors, advocates and other experts), but also in certain situations taxpayers implementing tax schemes. The information provided as part of a special procedure should include details of the arrangements agreed upon as part of the transaction with a description of it and an estimate of the expected tax benefit.

 

Changes to GAAR

The 2019 Tax Bill introduced among others a penalty payment (sanction) in the form of an additional liability 40% or 10% of the tax liability resulting from the application of the GAAR (sanction covers also application of other anti-abuse clauses, transfer pricing settlements and cases where the withholding tax payer issued incorrect statement and did not make the required verification with reference to the withholding tax rate). The 10% rate may apply to income taxes where income constitutes the tax base.

New rules cancelled the limit for the tax benefit which was till the end of 2018 in the amount of 100.000 PLN. Currently the limit is 0,00.

The above penalty payment rate may be doubled in the case of tax benefits exceeding PLN 15 million, where the taxpayer has previously received a final decision on the basis of anti-abuse provisions) or in the absence of transfer pricing documentation. In certain circumstances, the above rates may also be reduced by half. The project also extends the applicability of the GAAR clause to tax agents (remitters) and introduces a number of detailed changes in the application of the GAAR clause (e.g. issues of statue of limitation, correction of declarations in the course of GAAR related proceedings, clarification of the artificiality condition) and GAAR proceedings (including proceedings for issuing of a protective opinion).

 

Notional Interest Deduction

The 2019 Tax Bill introduced new Notional Interest Deduction mechanism, i.e. the possibility to deduct from the taxable base of the hypothetical costs of obtaining external capital in the case the company receives funding in the form of additional payments to capital or retained profits.

Capital financing costs are calculated as the product of the financing amount and the NBP reference rate increased by 1% and may not exceed PLN 250 000 in the tax year. This mechanism is to apply from 2020 (including also retained earnings from 2019).

 

Virtual currencies

The 2019 Tax Bill also introduced to the Polish tax law the detailed rules of taxation of the income from virtual currencies. Revenues from trading in virtual currencies are qualified as the revenues from capital in PIT or capital gains in CIT. The loss incurred while trading in virtual currencies will not be deducted from other taxpayer’s income, for example from the sale of shares or from business activity.

 

Costs of purchase (lease agreement) of passenger cars

From the 1st of January 2019 the limit of costs for amortization was increased. Till the end of 2018 we had the limit to 20 000 EUR for passenger car ( only till this amount we were allowed to classify costs of amortization to the taxable costs). From 2019 the limit is on the level of  150 000 PLN ( gas/petrol cars). For electric cars the limit is 225 000 PLN but there should be additional requirements met ( EU directive).

The same limit is for costs of cars using based on lease agreement. We also use this limit for classification of taxable costs of insurance policicies.

 

Limitation of expenses for the use of vehicles

Expenses related to the use of a passenger cars serving the taxpayer also for purposes other than business activity are included in the tax deductible costs only in the amount of 75% of these expenses . The possibility to include in the tax deductible costs 100% of such expenses will apply to the use of a car only for business purposes and only when accurate records are kept (evidence of using the car).

 

Amendments to the regulations on controlled foreign companies (CFC)

The implemented changes provide that the scope of the regulation will also cover entities as branches of foreign companies, foreign tax groups or unknown to the Polish legal system, such as private foundations or trusts.

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