A new foodstuffs fee, commonly referred to as the sugar tax, became effective on 1 January 2021. Levied on beverages containing sugars, caffeine or taurine placed on the domestic market, the new tax has been introduced under the Act of 14 February 2020 amending certain acts in connection with promotion of healthy consumer choices (Polish Journal of Laws, item 1492), which brought a raft of important changes to a number of regulations. The essential part of provisions imposing the sugar tax has been delivered by the Act of 11 September 2015 on Public Health (Polish Journal Of Laws of 2021, item 183, as amended), as in effect from the beginning of this year, where the components and the method of collection of the new levy have been set out
Subject of taxation
The sugar tax is due on beverages containing:
- sugars (monosaccharides or disaccharides),
- substances used for their sweeting properties (sweeteners),
- caffeine or taurine.
Nevertheless, the new regulations provide for a number of exemptions, meaning that the fee will be charged on beverages being:
- medical devices;
- dietary supplements;
- food for special medical purposes, infant formulas, and follow-on formulas;
- excise goods;
- juice-based beverages (i.e. beverages in which the mass proportion of fruit, vegetable or fruit/vegetable juice constitutes not less than 20 percent of ingredients, and in which the sugar content is less than or equal to 5 g per 100 ml of beverage),
- carbohydrate electrolyte drinks, in which the content of sugars is lower or equal to 5 g per 100 ml of beverage
- milk beverages (with milk at the first place of the list of ingredients).
Taxable activities and taxpayers
The fee is charged to entities placing the above-listed types of beverages on the domestic market, which in practice means selling beverages to the first point where retail sales take place. Importantly, if beverages are sold to an entity involved with both retail and wholesale trade, the sugar tax will be payable on all sales made to such a purchaser.
The sugar tax will be levied on entities or individuals selling beverages to retail outlets or conducting retail sales, i.e.:
- entities purchasing beverages within the frames of intra-Community acquisition of goods,
- ordering parties, where the composition of the beverage covered by the fee constitutes part of the contract concluded with the producer for the production of the beverage for the ordering party.
The sugar fee is a single-phase tax, meaning that it is collected only once and that the beverages on which it has been levied will not be subject to a second payment at any further stage of trading.
Tax basis and calculation method
The fee has a fixed and variable component.
The fixed component amounts to PLN 0.50 for the content of sugars in an amount equal to or less than 5 g in 100 ml of beverage or for the content of at least one sweetener (in any amount),
In turn, the variable component of the fee amounts to PLN 0.05 for each gram of sugar above 5g/100ml, expressed per litre.
Moreover, PLN 0.01 per litre is added for beverages containing caffeine and/or taurine.
Importantly, there exists a category of beverages to which only the variable tax amount is applied, meaning beverages in which the mass proportion of fruit, vegetable or fruit/vegetable juice constitutes not less than 20 percent of ingredients, as well as carbohydrate electrolyte drinks, in which the content of sugars is above 5 g per 100 ml of beverage.
The fees add up, yet the maximum amount of fee cannot exceed PLN 1.2 per 1 litre of beverage.
Payment, information on the amount due and competent tax authorities
The sugar tax is settled monthly and remitted by the 25th day of the subsequent month to an individual tax account. The tax is settled via CUK-1 form, a type of tax return in which information on the amount due must be provided. The form is submitted electronically and authenticated by a qualified digital signature, via dedicated website of the Ministry of Finance, with no possibility of submitting it on paper.
Where the tax is not paid on time, sanctions may be imposed. The competent authority may, by way of decision, impose on the payer a sanction fee in the amount corresponding to 50 percent of the amount of the fee due.
A tax authority competent for sugar tax-related matters is the head of the tax office competent for the place of residence or seat of the taxpayer.
Interpretation doubts and overall legal assessment
In fact, the first couple of months of applying the new levy brought an important struggle in terms of settlements, stemming mainly from the wording of the provisions on the sugar tax, but also because of how the method of its calculation was presented by the Ministry of Finance.
The key issue was the interpretation of the regulations available on the government websites, pursuant to which the maximum amount of the fee was PLN 1.2 per 1 litre of drink. It seemed to clearly indicate that the maximum amount of the fee applied to a given (type of) beverage - i.e. the fee calculated for a specific beverage could not exceed PLN 1.2 per litre.
Unfortunately, the information published by the Ministry of Finance and the CUK form itself were based on a quite different assumption, i.e. that the maximum rate introduced by the cited provision should be applied collectively to all beverages placed on the market by the taxpayer in a given period, which means that the rate applied to individual beverages may exceed the provided threshold. Clearly, in many cases, following such an approach led to increasing the fee, due to the 'averaging' of the fee for individual beverages.
When this article was being written, the method of sugar tax calculation provided via governmental websites has been already updated to reflect what in our opinion is the correct interpretation of the provision in question. On the one hand, this is definitely a positive change, yet on the other, because of such situations, tax authorities definitely do not garner the trust of taxpayers, who may now wonder how the updated approach of the Ministry of Finance will affect their current settlements.
The plethora of different measurement units used definitely does not make the task any easier for taxpayers. On several pages of the Act, which, in theory, should provide a precise description of how the levy should be calculated, and in the structure of the CUK-1 form itself, such units as: mg, g, ml (also present in its multiple - 100 ml) and litre are simultaneously used. As a result, fee calculation becomes a complex mathematical task, with the number of zeros to enter in a specific field of the CUK-1 form being a challenge for many taxpayers.
The level of complexity thereof is best evidenced by the data presented by the Ministry of Finance in relation to the CUK-1 declarations submitted for the first fee period: according to the information made available to the press, as of 28 February 2021, less than 30% of taxpayers submitted the form correctly. The Ministry’s interpretation of “correct submission” at that time, however, remains a matter of conjecture.
Zbigniew Sobecki, Manager, Indirect Tax Services, KPMG in Poland
Rafał Roczniak, Manager, Indirect Tax Services, KPMG in Poland
Frontiers in tax. Polish edition | June 2021
This issue of the Magazine explores the key VAT-related changes, including introduction of a new type of e-invoice, commonly referred to as structured invoice, the SLIM VAT package, the VAT e-Commerce package, along with the latest developments related to the sugar tax.
In this issue:
- Introduction – Tomasz Bełdyga
- Structured invoice: a new VAT invoicing scheme – Łukasz Daniek
- VAT-slimming in practice – Tomasz Piotrowski
- The next edition of the SLIM VAT package – Natalia Kłoś, Patryk Roratowski
- The VAT E-Commerce Package: VAT Changes for B2C Trade– Izabela Jędra, Kamil Chmielewski
- VAT E-Commerce Package: Marketplaces and the new roles they are about to assume – Izabela Jędra, Kamil Chmielewski
- A draft Decree on amending the extended SAF_T file (JPK_VAT) – Izabela Jędra, Kamil Chmielewski
- Reverse charge on VAT: a landmark ruling of CJEU – Marek Bielawski
- Sugar tax – Zbigniew Sobecki, Rafał Roczniak
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