DAC6 directive in Poland

The DAC6 directive has been implemented in Poland since 1 January 2019.

The period for which information on the tax scheme should be submitted in relation to activities taking place before 1 January 2019 depends on the type of tax scheme that is subject to reporting. In case of:

• cross-border arrangements for which the first activity related to their implementation was performed after 25 June 2018; and
• national arrangements for which the first activity related to their implementation was performed after 1 November 2018;

the intermediary should have reported the arrangement by 30 June 2019, and if the relevant taxpayer was obliged to report the arrangement, the obligation should have been fulfilled by 30 September 2019.

The Act of 19 June 2020, part of the COVID-19 legislation, introduced as of 1 July 2020, significantly extended deadlines for the reporting of tax arrangements:

• for national arrangements, the deadlines specified in the national regulations do not start, and the commenced ones are suspended, in the period from 31 March 2020 to the 30th day following the date the COVID-19 epidemic status is called off;
• for cross-border arrangements, the deadlines specified in the national regulations do not start, and the commenced ones are suspended, in the period from 31 March 2020 to 30 June 2020.

Moreover, Polish regulations provide for the re-reporting of cross-border tax arrangements in order to complete the information and to adapt it to the scheme required by the European Union. The Polish Minister of Finance has opted, as offered by Council Directive (EU) 2020/876 of 24 June 2020 due to the COVID-19 health crisis, for an extension of deadlines for the re-reporting of these tax arrangements.

If the first activity related to their implementation was performed in the period from 26 June 2018 to 30 June 2020, the regulation provides that the report should be made by 31 December 2020, or by 31 January 2021, or by 28 February 2021, depending which entity should have reported the arrangement. Accordingly, the regulation also provides that, as from 1 January 2021, most of the procedural deadlines for reporting cross-border tax arrangements implemented in 2020, or for which the first steps of their implementation have been taken in 2020, shall start for promoters, taxpayers and service providers.

The declaration shall be made available to the tax authorities by electronic means through the following website.

Yes. Polish regulations additionally impose an obligation to indicate whether the information provided in connection with a tax arrangement relates to a standardised tax arrangement or a cross-border tax arrangement. Additionally, the declaration should indicate the number assigned to a tax arrangement by another Member State in relation to the cross-border tax arrangements, as well as the email address to which the confirmation of posting the number will be delivered.

Poland gives intermediaries the possibility to be exempted from filing information on a tax arrangement where the reporting obligation would breach legally-protected professional secrecy and provided that the relevant taxpayer did not release the intermediary from professional secrecy regarding the arrangement.

In that case, the intermediary, within the deadlines provided for submitting the information about the arrangement, shall inform the relevant taxpayer of the deadlines by which he should submit the information about the arrangement, provide the relevant taxpayer with the data necessary to be included in the information about the arrangement, and inform other known entities in writing about the obligation to provide information to the Head of the National Revenue Administration. Then, within the statutory time limit, the intermediary shall notify the Head of the National Revenue Administration about informing the relevant taxpayer and other entities about the obligation to provide the arrangement, indicating the date of making the arrangement available and the number of entities that he informed on the form.

When more than one intermediary is obliged to provide information on the arrangement, the performance of this obligation by one of them releases the others who were indicated in the information on the arrangement and informed in writing about the number of this arrangement, with the confirmation of posting the number. The intermediary is also exempted from reporting when the declaration has been submitted by another intermediary in another Member State, however the intermediary must prove that the cross-border arrangement has been correctly reported to the tax authorities in that Member State.

Polish law provides for two types of sanctions related to the reporting obligation:

1. administrative sanctions for failure to introduce an internal procedure:
   1. penalty fine for failure to introduce an internal procedure should not exceed PLN 2,000,000 (EUR 460,000)
   2. penalty fine for failure to introduce an internal procedure and to comply with reporting obligation should not exceed PLN 10,000,000 (EUR 2,300,000).
2. penal sanctions for failure to report or other fiscal crimes:
   1. penal sanctions may be applied based on the Polish Penal Fiscal Code. Failure to report an arrangement may result in a penalty fine of up to PLN 24,960,960 (EUR 5,700,000).

This part aims at identifying statutory rules which depart from the Directive.

Yes. Polish legislation lays down reporting obligation in purely domestic situation.

The obligation to report the national arrangement arises only when the tax scheme user meets the so-called ‘qualified beneficiary’ criterion:

• the income/costs or the accounting value of the beneficiary’s assets in the previous or present accounting year exceed EUR 10,000,000; or
• the beneficiary is related to such entity; or
• an agreement on items or rights has a market value exceeding EUR 2,500,000.

Yes. In Poland, the reporting obligation applies to all taxes (e.g. PIT, CIT, VAT, Excise duty, customs duty, inheritance and donation tax, TCLT, local taxes).

Yes.

Additional generic hallmarks in Poland are:

• an arrangement in which the tax scheme user undertook to cooperate with the promoter who made the arrangement available, or pay remuneration or compensation to the promoter if the arrangement is implemented;
• an arrangement in which the intermediary or tax scheme user in fact respects at least one of the following obligations:

• remuneration based on tax benefit (success fee);
• remuneration or its part is returned, if the tax benefit does not arise or will arise in an amount lower than expected;

• an arrangement where, based on the existing circumstances, it should be assumed that a reasonably acting intermediary or tax scheme user would like at least one of the obligations – confidentiality, success fee or refund of remuneration – to be actually respected.

Additional specific hallmarks in Poland are:

• an arrangement in which the impact on the deferred part of the income tax or deferred tax assets or deferred tax liability, arising or expected to arise in connection with the arrangement implemented by the user, is relevant for a given entity within the meaning of accounting regulations and exceeds the amount of PLN 5,000,000 (EUR 1,150,000) in a calendar year;
• an arrangement in which a remitter of income tax would be obliged to collect tax exceeding the amount of PLN 5,000,000 (EUR 1,150,000) in a calendar year, if the relevant double tax treaty or tax exemptions would not apply with regard to the payment of amounts due arising, or expected to arise, in connection with the arrangement;
• an arrangement, in which the income (revenues) of a non-resident individual taxpayer or a non-resident corporate income taxpayer, resulting or expected in connection with the arrangement, exceeds the total amount of PLN 25,000,000 (EUR 5,800,000) annually;
• an arrangement in which the difference between the Polish income tax that would be due in connection with the implementation of the arrangement from users who do not have a registered office, management or place of residence in the territory of Poland, calculated if they were a taxpayer (tax calculated hypothetically), and the tax subject to actual payment in the country of the client’s seat, management or place of residence, in connection with the implementation of the arrangement, exceeds the total amount of PLN 5,000,000 (EUR 1,150,000) annually.