KPMG Weekly Tax Review 31 OCT - 7 NOV 2022

On 4 November 2022, the Act on emergency measures capping electricity prices and protecting certain groups of consumers in 2023 entered into force. One of the key amendments brought about by the Act is the obligation to apply the maximum price in settlements with energy recipients listed in the Act, where the prices set forth in contracts concluded are higher than the prescribed maximum price. It also introduces a compensation scheme for trading companies, under which compensations will be granted by Zarządca Rozliczeń S.A. Moreover, certain categories of electricity producers will be now required to pay contributions to the Price Difference Payment Fund (by the 5th day of each month following the billing month) in the amount corresponding to the surplus revenue, according to the calculation method provided by the Act (a solution alternative to Windfall Tax). This applies to the period 01 December 2022 - 31 December 2023.

On 28 October 2022, draft legislation guidelines relating to the Act on reporting obligations for digital platform operators was added to the list of legislative work and policies of the Council of Ministers. The goal thereof is to incorporate the provisions of the Council Directive amending Directive 2011/16/EU on administrative cooperation in the field of taxation (DAC7) into the national law. The legislative proposal aims at improvement and extension of the applicable provisions on the scope of information exchange and administrative cooperation in the field of taxation. The proposed solutions include:

1. imposing on platform operators the obligation to verify whether the activities facilitated through the platform they operate are reportable,
2. enabling a mechanism for exchange of information between Member States, and
3. improving the existing ways of cooperation between state administrations, inter alia, by introducing the possibility of joint audits.

On 4 November 2022, a draft bill amending certain acts to ensure development of the financial market and protect the investors was published on the Government Legislation Centre’s website. The bill intends to implement the key assumptions of the Polish Capital Markets Strategy (Polish: Strategia Rozwoju Rynku Kapitałowego or SRRK) in the field of gold plating, single banking license, ETFs (Exchange Traded Funds), Green Bonds, and voluntary disclosures. The provisions have been put out to public consultation. Comments on the draft bill can be submitted until 25 November 2022.

In its ruling dated 4 November 2022 (case file I FSK 236/19), the Supreme Administrative Court held that in the case of cashback discounts on reverse charge sales of mobile phones there are no grounds for reducing the output tax by the discount-granting entity, since tax on account of sales has not been paid. At the same time, the Court noted that even though such situations are not regulated by law, the general principles (of proportionality and neutrality) invoked by the applicant would not apply in this case. 

In its ruling dated 28 October 2022 (case file III SA/Wa 1005/22), the Regional Administrative Court in Warsaw pronounced itself in the case of a company planning to enter with its counterparties into agreements on the principles of issuing correcting invoices, under which the company would be authorized to recognize the date of issuing a collective corrective invoice as the date of adjusting output tax. According to the Court, the taxable base cannot be reduced only because a correcting invoice was issued. This is because a correcting invoice per se documents (confirms) reduction of the taxable base but does not cause it.

In its ruling dated 27 October 2022 (case file I SA/Go 306/22), the Regional Administrative Court in Gorzów Wielkopolski pronounced itself in the case of a beneficiary who did not receive the donated funds to their account, but directly to the account of the disposer of the right to residential premises bought jointly with the benefactor. According to the Court, a joint analysis of linguistic, systemic, external and functional interpretation leads to the conclusion that documenting the transfer of donated funds directly to the account of the disposer of the cooperative right to the premises does not contradict or fall outside the scope of the tax exemption condition under Article 4a(1)(2) of the Inheritance and Donation Tax Act.

The act amending the act on upbringing in sobriety and counteracting alcoholism, the act on public health, and certain other acts, which is to, inter alia, introduce amendments to the provisions on the sugar fee is expected to enter into force on 1 July 2023. The amended provisions will extend the list of entities obliged to pay the fee with manufacturers of goods in which the low presence of carbohydrates and sugars is not due to the addition of any sweeteners but occurs naturally. Moreover, the fee will also be charged for activities including free-of-charge donations of beverages (including for charity purposes). 

On 2 November 2022, a draft bill amending the Act on Excise Duty and certain other acts was submitted to the Lower House of the Polish Parliament. The bill provides for extending the issue deadline for declarations confirming that all the requirements related to functions, criteria and technical conditions are met by special purpose cash registers with electronic copy of receipts. Up to now, the deadline for issuing such declarations was 31 December 2022. In line with the planned amendments, however, they can be issued until 31 December 2023. According to the ministry, these changes are dictated by the specificity of certain types of activity, in relation to which, from 1 January 2023, there may be problems with access to special purpose cash registers with electronic copy of receipts. In practice, this means that the deadlines will be different for special purpose and non-special purpose cash registers with electronic copy of receipts since the latter must be certified by the end of 2022. The essential provisions of the act are to enter into force on 1 January 2023.