Invoices documenting the purchase of electricity from companies with electrical installations feeding the energy grid from photovoltaics include an entry described as a prosumer deposit, which reduces the gross amount payable from such an invoice. These types of entries concern the value of surplus energy introduced into the grid from a photovoltaic installation. These entries are associated with the system of energy settlements with prosumers introduced by the Act on Renewable Energy Sources (hereinafter referred to as the RES Act).
The RES Act introduced a system of prosumer billing through value-based billing, known as net-billing. The term prosumer deposit, prosumer, micro-installation or prosumer account is defined in the Article 4c(1) of the RES Act.
According to the RES Act, prosumers can be both legal entities and non-legal entities, or entrepreneurs who are end users within the meaning of the Energy Law, and who generate electricity exclusively from renewable energy sources for their own needs in a micro-installation, provided that this does not constitute their predominant economic activity as defined in Article 40(2) of the Act of June 29, 1995 on Public Statistics.
The predominant type of activity, according to the PKD code system, may be determined based on the percentage share of particular types of activities in the total value of sales revenues. A micro-installation includes installations of a renewable energy source with a total installed capacity not exceeding 50 kW, connected to a power grid with a rated voltage lower than 110 kV or with a combined thermal power of not more than 150 kW, in which the total installed electrical power does not exceed 50 kW.
In the billing model established by law, the seller, i.e., the power distributor to which the prosumer yields surplus energy from a renewable source such as a photovoltaic installation, is obliged to keep an account for the prosumer called a "prosumer account.” This enables tracking the value of energy introduced by the prosumer into the grid and the value of energy consumed by the prosumer.
Important: the total amount of the prosumer deposit includes the unsettled value and will not always be equal to the value of the energy introduced by the prosumer into the grid within a given month.
In practice, questions arise as to whether the value reducing the amount to be paid on energy invoices for the prosumer deposit should be reported as taxable income due in the CIT settlements of companies which are CIT taxpayers, and for prosumers by virtue of owning photovoltaics and supplying the grid with energy derived from this source.
Another source of ambiguity is the provision of Article.4(12) of the RES Act, according to which the surplus electricity referred to in paragraph 11 does not constitute income within the meaning of the Corporate Income Tax Act of February 15, 1992 (Journal of Laws 2022, item 2587, as amended).
What is problematic is the lack of a tax exemption directly in the CIT Act for this type of contribution from the prosumer. Even though the wording of the aforementioned provision seems clear, including it in a "non-tax" act may have various negative effects on the security of its application (from tax authorities being unaware of the existence of such a provision to the refusal of issuing individual interpretations under the false pretext that this provision goes beyond the scope of tax law).
The situation of taxpayers is made more difficult due to the lack of a clear interpretation of the aforementioned regulations in the context of settlements of this kind, e.g. in the form of a general interpretation - the need to take into account whether to treat the entire due amount as income in CIT or to treat it as a gross amount that also includes output VAT. In this situation, it may be helpful to individually analyze specific cases and their scale within a given company in order to avoid the risk of erroneous settlement in terms of CIT or VAT, as well as to take measures that reduce the potential tax risk associated with the settlement of such events.
We encourage you to contact our experts who can provide you with support in this scope.
Pursuant to art. 106b section 1b of the VAT Act, advance invoices will still have to be issued in cases referred to in art. 106i section 3-8 of the VAT Act, i.e. e.g. in the case of supply of construction or construction and assembly services to taxpayers, supply of printed books, accounting for the return of publications or packaging or at the specific request of the counterparty.
Importantly, where the taxable person exercises the option not to issue an invoice on account, the final invoice issued by the taxable person should include the date on which the supply of goods or services was made or completed and the date on which the advance was received, if such a date is specified and differs from the date on which the invoice was issued.
If, on the other hand, the taxable person will issue interim invoices, he is obliged to include on the final invoice the numbers identifying previous invoices in the National e-Invoice System and, in the case of invoices other than structured invoices, the numbers of previous invoices.
The changes, these are of a clarifying nature, the position of the tax authorities in this respect has long been in line with the new provisions. However, the clarification of the provisions should be assessed positively, as they remove uncertainty for taxpayers in this regard.
The new limit is PLN 450 per employee per month.
This change applies to vouchers, coupons or prepaid cards received by employees, entitling them to purchase meals in catering or retail establishments.
Exemption from Social Security contributions of up to PLN 450 applies to:
The Social Security exemption does not apply to B2B associates/contractors.
Meals in the scope of Occupational Health and Safety (OSH) - according to Art. 232 of the Labor Code - the employer is required to provide employees working in particularly demanding conditions which involves high physical effort, with appropriate meals and drinks free of charge, if deemed necessary for prophylactic reasons.
An employer issuing prophylactic meals to employees on an OSH basis should have a list of staff positions entitled to such meals and an assessment of energy required at the workstations, from which it will be clear that the effective energy expenditure of the body during a work shift requires the provision of such a meal to an employee working in a particular position.
Detailed rules for the issuance of meals and beverages and the requirements they should meet, as well as the cases and conditions under which they should be issued, are set forth in the Decree of the Council of Ministers of May 28, 1996 on prophylactic meals and beverages.
According to the regulation - prophylactic meals must be prepared from properly selected ingredients to cover the need for a certain amount of energy and nutrients. It is also worth recalling that the workplaces where employees should receive meals and drinks, as well as the detailed rules for serving them, are always determined by the employer in consultation with the company's trade unions or employee representatives.
If the employer does not have the possibility of providing meals due to the type of work performed by the employee or for organizational reasons, they may provide during working time:
In order to benefit from the exemption from social and health insurance contributions, the following conditions must be met:
The benefits are exempt from taxation, as they are covered by the exemptions regulated in Art. 21 (1) pt. 11 or pt. 11b of the Personal Income Tax Act. According to the wording of these provisions, the tax exemption applies to a benefit in kind, i.e. a prophylactic meal, as well as to the value of vouchers, coupons or other benefits received from the employer entitling an employee to obtain meals, food or non-alcoholic beverages on their basis, in cases where the employer, despite the obligation under the OHS regulations, is unable to issue meals, food or non-alcoholic beverages to their employees.
The tax exemption, as in the case of the Social Security exemption, can be applied only if the employer is obliged to issue benefits in the form of beverages and prophylactic and restorative meals by specific provisions of labor law, i.e. from the field of occupational health and safety.
The catalog of substitutes for a prophylactic meal that benefit from tax exemptions includes, among others, the issuance of prepaid cards, as long as the employee collects evidence in the form of receipts showing that the funds credited to the card were used to purchase prepared meals, food and non-alcoholic beverages (individual interpretation by the Director of the National Tax Information dated March 3rd, 2022, No. 0112-KDIL2-1.4011.1217.2021.2.DJ).
If hot meals or their legally stipulated substitutes are also provided voluntarily by the employer to employees in other jobs, the value of these benefits should be added to the income of these persons from the employment relationship.
According to Article 12(1) of the Personal Income Tax Act, income from the employment relationship includes all kinds of monetary payments and the monetary value of benefits in kind or their equivalents, regardless of the source of financing of such payments and benefits, and in particular, among others, monetary benefits incurred for an employee, as well as the value of other gratuitous benefits or partially paid benefits.
The monetary value of the benefit should be determined according to the purchase price of the meal from another entity, or according to the price for external entities when the employer operates a public buffet or canteen, or according to the market price when an in-house buffet or canteen is available only to employees.
The Polish Constitutional Court, in a judgment dated July 8, 2014, ruled that we can speak of an employee's income in strictly defined cases:
Income arises on the condition that it is possible to determine the value of the meals consumed by a particular employee, i.e., to assign a specific meal income to the employee. An employee who receives a meal subsidy must pay tax on it as on wages. In the case of persons paid under employment contracts, this will be income from the employment relationship. For contractors and board members paid on this basis, it will be income from personal activities.
Vouchers for employees that are entirely financed from the Company Social Benefits Fund are subject to Social Security relief under § 2 (1) (19) of the Ordinance on detailed rules for determining the basis for calculating contributions to pension and disability insurance.
In order for the exemption to apply, the vouchers must be accounted for in accordance with the regulations of the Social Benefits Fund and should be awarded according to a social criterion that includes, among other things, the living and material situation of the employed persons.
Under Article 21(1)(67) of the Act on Personal Income Tax, the value of benefits in kind received by an employee and cash benefits received by him in this regard, financed entirely from the funds of the company's social benefits fund, was exempted from tax in total up to an amount not exceeding PLN 2,000 in a tax year, with the limit applying from 2020 until the end of the tax year following the year in which the state of epidemics declared due to COVID-19 was cancelled, i.e., until the end of 2023 (Article 21(1)(67) of the Act on Personal Income Tax). pt. 67 in conjunction with Article 52l pt. 3 of the Act on Personal Income Tax). The in-kind benefits referred to in this provision are not vouchers, vouchers and other tokens, entitling them to exchange for goods or services.
On September 1st, 2023, the amendment to the decree of the Minister of Family and Social Policy will go into effect, according to which the monthly limit on meal subsidies for employees, on which Social Security Administration dues do not have to be paid, will increase. The new limit will be PLN 450 per employee per month.
This change applies to vouchers, coupons or prepaid cards received by employees, entitling them to purchase meals in catering or retail establishments.
Legal basis: Ordinance of the Minister of Family and Social Policy of August 9th, 2023, amending the Ordinance on detailed rules for determining the basis for calculating contributions to pension and disability insurance - Journal of Laws of August 22nd, 2023, item 1665.
Replacing paper declarations with Standard Audit File or abandoning traditional tax records was only the beginning of the e-revolution. Both our approach to monthly VAT Compliance processes and the scope of information provided to tax authorities have changed. The Fiscal Administration knows more about us and our businesses. This time, however, it is the Ministry of Finance and the tax office competent for settling VAT under the special One Stop Shop procedure who had to cooperate to adapt their internal systems to the business reality of taxpayers.
In 2021, after the breakthrough Brexit, one of our clients chose Poland as the so-called country of identification for VAT settlements on services provided in one of the simplified OSS procedures. Pursuant to the pan-European regulations, a taxpayer from a third country may settle VAT under the union OSS procedure on electronic B2C services if they have a fixed establishment in the territory of the country of identification.
Unfortunately, in 2021 OSS registration forms in Poland were not ready for post-Brexit. The VIU-R electronic forms available at that time provided that the UK was still a Member State. Following the recommendation of the Ministry of Finance, the taxpayer was registered thanks to the provisional solution where its country of establishment was filled out in the “Name of the entity” section. Many tax settlement periods later, when the relevant forms were updated by the Ministry, we submitted to the tax office an update in this respect. However, the facts remained the same. The taxpayer had its registered office in the UK and this location has not changed for the last 2 years.
However, after sending the first OSS return after the update, we received an e-mail with information about its rejection. It turned out that the ministerial system does not cover all the scenarios referred to in the regulations known to us widely as the so-called "E-commerce package". According to the system, a non-EU taxpayer could submit its returns only under the non-union OSS procedure, as information about a fixed establishment in our country could not be recorded properly. The system had significant loophole in this respect and thus blocked our client's return. The case was reported to the appropriate department of the Ministry of Finance and after obtaining a legal opinion from the VAT Department, we received information about the adaptation and effective update of the system and confirmation from the tax office itself that the return could be submitted again.
This time successfully. The undoubted success, however, was accompanied by a bit of stress - what if the automation of settlements stood in the way of the correct application of the law and our business reality? Were it not for our intervention, the consequences of rejecting the return by the system would be severe and very costly for the taxpayer requiring retroactive registration in all Member States of consumption and payment of VAT along with late payment statutory interest.
During the last 3 years (due to COVID-19 threat), the deadlines for reporting national tax schemes (hereinafter: MDR) have been suspended until the 30th day following the date of cancelling the state of epidemic threat. Throughout this period, a significant number of companies with solely domestic transactions postponed this obligation until the end of the state of epidemiological threat.
IMPORTANT: From July 1st, 2023, the state of epidemic emergency was canceled. Consequently, from August 1st, 2023, reporting of domestic tax schemes will become mandatory again.
We encourage you to review your transactions (for the last 3 years) to determine the scope of your MDR obligations and take appropriate reporting actions.
In the event of failure to provide the proper authority with information on the tax scheme or the submission of information after the deadline, the entity may be fined up to 720 daily rates, i.e. over PLN 28 million.
Moreover, in the event of a conviction for a tax offense in connection with the violation of the provisions on reporting tax schemes, the court may order a ban on conducting specific business activity.
If you are unsure about your company's MDR obligations, we suggest a short teleconference during which we will discuss MDR reporting obligations within your company from a practical perspective. We will also suggest realistic steps for protecting your company from the consequences of a possible inspection by authorities. We cordially invite you to contact Miłosz Saramak (email@example.com).
The fundamental document is the VAT-R application form (available in both Polish and English). This form is also used to register for intra-Community transactions.
Apart from the registration application, the registration process also includes an identification application on the NIP-2 form.
The VAT-R registration application and the NIP-2 update application may both be submitted in electronic form (a qualified signature is required) and paper form.
* The aforementioned documents must clearly portray the entity’s form of representation. Any doubts as to representation may prolong the registration process.
If the taxpayer intends to commission another entity to perform activities related to the handling of their VAT settlements, in addition to the aforementioned documents, it is also worth submitting appropriate powers of attorney which enable acting on a taxpayer’s behalf in front of tax offices in Poland, e.g.:
Appointment of a general attorney may be important in a situation where the taxpayer wants the Tax Office to direct all correspondences to the entity servicing it in the scope of VAT.
Currently, in Poland, there is no other possibility to indicate the correspondence address than to specify the address of the general attorney in the PPO-1 form. Indicating such an address is important and facilitates VAT settlement, because the office sends correspondence in Polish to this address. In a situation where this correspondence is sent to the taxpayer's foreign address, it may interfere with the flow of information and compliance with the deadlines set by the tax authorities for performing indicated activities. Unfortunately, the submission of a power of attorney does not take place, as in other cases, by submitting it directly to authorities. This procedure requires setting up a taxpayer's account on a special portal run by the National Revenue Administration - the so-called Taxpayer Portal (pl. Portal Podatnika). The taxpayer can appoint a general representative only via this portal.
All documents submitted to the Tax Office which were drawn up in Polish must be submitted in their original copy or must be notarized. Our experience shows that offices accept situations in which they receive copies of documents during a visit to the office, and the originals are presented for inspection.
Documents in a foreign language must be submitted along with a certified translation from a certified document.
For foreign entities, the head of the Tax Office will most often be the Head of the 2nd Tax Office in Warsaw, Śródmieście.
Registration for VAT, including VAT-EU, is free of charge.
If the entity acts through a proxy - submitting a document confirming the granting of the power of attorney, or an officially certified copy of the power of attorney, is subject to a fee of PLN 17.
The fee should be paid at the cash desk of the Municipal / City Office relevant to the seat of the tax authority to which the VAT-R registration application is submitted, or by bank transfer to the account of this Office, with the title "stamp duty for power of attorney". Stamp duty may also be paid by your representative.
The mere submission of a VAT-R registration application does not mean that the entity will automatically become registered for VAT.
Before registering an active or exempt VAT payer, the head of the Tax Office verifies the data provided in the application. In this regard, the address of the entity may undergo verification of whether it exists, or whether it corresponds to the type and scale of the business. The tax office may also check whether a given entity has the appropriate conditions to carry out the indicated type of activity, e.g., vehicles for transporting goods or warehouse space.
The head of the Tax Office does not conclude registration without notifying the interested party if one of the following instances occur:
If the taxpayer submits all documents and they are properly signed by authorized persons, registration by the tax office is usually carried out within 5-7 working days.
However, it must be considered that the entire process - collecting all documents, making translations, submitting them by the taxpayer, and then the registration with the Tax Office - all take about 30 days on average.
According to Polish regulations, foreign taxpayers without a registered office or permanent place of business in the EU (excluding entities based in Great Britain and Norway) are required to appoint a tax representative in Poland.
A tax representative is appointed by concluding an agreement with an entity authorized to provide such services. The agreement is also submitted to the Tax Office.
The tax representative is responsible for settling VAT in Poland on behalf of and for the benefit of the taxpayer. In the scope of these settlements, the tax representative is jointly and severally liable for the taxpayer's tax liabilities. This risk means that entities providing representation services most often require additional collateral, e.g., in the form of bank guarantees.
In this article we will focus on the obligations and difficulties related to the registration for value-added tax (VAT).
Registration is mandatory for:
Business activity for VAT purposes is any activity conducted by producers, traders, or service providers (including natural resource extractors), farmers, and freelancers.
Economic activity specifically includes activities involving the use of goods or intangible assets on a continuous basis for gainful purposes and activities performed in the territory of Poland subject to value-added tax (VAT).
Companies intending to make intra-Community purchases and delivery of goods or import or provision of services for which the taxpayer is a service recipient established in another member state, are also subject to registration.
Even if a given entity is not an active VAT payer, they are obliged to register for VAT-EU, provided that the value of intra-Community purchases exceeded PLN 50,000 in the given or previous tax year.
However, the obligation to register as a VAT-EU taxpayer does not apply to the provision of services to individuals from other EU countries who do not conduct business.
Activities subject to VAT include:
In practice, the obligation of taxation as for most of these activities, in strictly defined cases, may be shifted onto the buyer under the so-called reverse charge (RCM). Then the seller is not obliged to undergo registration given that activities conducted in Poland are only those to which RCM is applicable.
However, this is not always possible, e.g., when transactions subject to VAT are carried out between two taxpayers with their registered office or permanent place of business outside of Poland, or when intra-Community acquisition of goods takes place in Poland.
Most often, foreign entities are required to register for VAT purposes when they engage in cross-border transactions to or from Poland, such as intra-Community supply of goods, export of goods or intra-Community acquisition of goods.
In simple terms, taxpayers are exempt from the obligation to register for VAT purposes when performing activities in the territory of Poland related to the handling of a very wide range of air and sea operations in passenger and cargo traffic.
However, if a given entity performs activities in Poland that are exempt from VAT, they are not obliged to register for VAT.
At this point, it is worth noting that an entity becomes a VAT payer due to factual circumstances, i.e., the performance of activities which are taxable in Poland. Registration is only a formality. If despite the obligation an entity fails to register, they are not exempt from the obligation to pay tax plus interest, but they also become vulnerable to criminal fiscal liability. The VAT registration application should be submitted to the proper head of the tax office before performing the first VAT-taxable activity. Simply put, this will usually be the supply of goods or services subject to taxation in Poland.
Similarly, in the case of intra-Community transactions, the declaration must be filed before carrying out the first such transaction.
According to Art. 31y of the act on combating COVID-19, the deadlines for reporting tax schemes other than those of a cross-border nature (so-called domestic tax schemes) have been suspended until the 30th day following the date of repealing the state of epidemic threat and the state of an epidemic announced due to COVID-19.
The suspension of the MDR deadlines due to COVID was in force for over 3 years - from March 30th, 2020. During this time, some entities continuously reported tax schemes, while others postponed this obligation until the end of the state of epidemiological threat.
The cancellation of the state of epidemic emergency means that from August 1st, 2023, reporting of domestic tax schemes will once again become mandatory.
All entities that may be subject to the obligation of reporting tax schemes should review their transactions for the last 3 years to determine the scope of their MDR obligations.
Failure to comply with the obligations regarding reporting tax schemes (MDR) may result in severe sanctions. According to Art. 80f of the Fiscal Penal Code, failure to provide the competent authority with information on the tax scheme or providing information after the deadline is punishable by a fine of up to 720 daily rates. Moreover, in case of a conviction for tax offenses due to a violation of the provisions on reporting tax schemes, the court may order a ban on conducting specific business activities.
The largest inconvenience in proving BO status is verifying whether business activity is in fact carried out in the country of residence, and if payments are received in relation to the business operations performed. This process is usually complex, requiring not only evidence of an office, employees, required equipment, but proof of individually performed business activities with the use of own resources, source documentation (extracts from register of entrepreneurs, financial statements), etc.
It must be noted that Polish law provides two definitions of a beneficial owner, each explaining an entirely different case. To avoid confusion, a distinction between these definitions must be made.
Beneficial owner - natural person(s) who exercises, directly or indirectly, control over a customer through powers held, as a result of legal or actual circumstances, enabling the exertion of impact on activities / actions undertaken by a customer or natural person(s), on whose behalf a business relationship is established, or an occasional transaction conducted.
Namely, a beneficial owner is:
The Act specifies rules and procedures for counteracting money laundering and financing of terrorism, and the conditions for conducting business activity by certain obligated institutions. Hence, this act does not define rights and obligations resulting from tax law and its definition is not applicable in the context of withholding tax (WHT).
This Act governs income taxation of legal persons and capital companies in the process of incorporation. Within this Act, a beneficial owner is an entity:
Only this definition of a beneficial owner should be considered in the context of WHT.
Should you have any questions/issues related to WHT feel free to contact us.
The obligation to perform periodic examinations and health and safety training was suspended shortly after the outbreak of the pandemic in Poland. In practice, this means that a significant number of organizations has not directed their employees to periodic occupational medicine examinations and health and safety training for the past three years.
The employer is obliged to update the suspended obligations related to directing employees for:
The employer is not obliged to direct employees to outstanding health and safety examinations and training as early as July or August. It can be done within the following deadlines:
Pursuant to the provisions of the Labor Code, the employer may not allow an employee to work without a valid medical certificate stating that there are no contraindications to work in a specific position. This provision means that if an employee refuses to undergo the examination, the employer doesn’t have the right to allow them to work. In this case, the employee is not entitled to any remuneration during the time of not performing work.
An employer who abandons the obligation to order periodic examinations and allows an employee to work without valid examinations is subject to a fine from PLN 10,000 to PLN 30,000.
Important: Occupational health examinations are mandatory. Periodic and follow-up examinations should be conducted during working hours, if possible. The employee retains the right to remuneration for the time they do not work due to examinations. The cost of the examinations is borne by the employer.
Preliminary examinations do not apply to people reemployed by a given employer for the same position or for a position with the same working conditions, based on another employment contract concluded within 30 days after the termination or expiration of the previous employment contract with that employer.
From July 1st, 2023, the employer will no longer be able to send an employee on a holiday leave from previous years of up to 30 days within the period imposed by the employer, without the need to obtain the employee's consent and bypassing the leave schedule.
The obligation of granting leave will return, as a rule, in accordance with the leave plan agreed with employees or, in the absence of a leave plan, directly with the employees.
Forcibly sending an employee on leave will only be possible in the following situations:
With the end of the epidemic emergency, the limitation on compensation and severance pay in the event of termination of employment, which during the pandemic period was limited to 10 times the minimum wage, will also disappear.
As of July 1st, 2023, employers will be subject to a limit of 15 times the minimum wage when paying severance pay or compensation on termination of employment.
Return of "Fiction of Delivery." The 14-day period for the delivery of a letter returns
If an employee ignores a letter sent to them via mail by the employer, 7 days after the second delivery notice the letter is considered as delivered.
In practice, this means that the termination of an employment contract sent by the employer through the Polish Postal Service and not picked up by the employee will be considered delivered after 14 days from the first delivery attempt.
Important! All terminations previously sent and not received for the last 3 years during the state of epidemic emergency will be considered as effectively delivered after 14 days from the date of lifting the epidemic emergency, i.e. contracts will automatically terminate on July 15
During the period of the state of epidemic threat, employers who experienced a decrease in turnover or a significant increase in the burden on the remuneration fund could withdraw from applying a higher contribution than specified in the act contribution to the Company Social Benefits Fund.
From July 1, 2023, the cancellation of the state of epidemic threat will mean that these employers need to return to the amount of the ZFŚS deduction guaranteed by the provisions of collective labor agreements or remuneration regulations.
On June 5th, 2023, an amendment to the Law on Value Added Tax and certain other laws was published. Are these changes revolutionary? Not really. Nevertheless, their introduction should be assessed as very beneficial. Some changes are forced by the case law of the Court of Justice of the EU, e.g. in the area of VAT sanctions or settlement of VAT, while others are already functioning in practice.
The simplifications included in the SLIM VAT3 package concern the following areas:
The limit for small taxpayers' sales value has been raised from the current 1.2 to 2 mln EUR, allowing a larger number of entities to benefit from quarterly VAT settlements and the use of the cash accounting method.
The possibility of using funds in the VAT account has been expanded, allowing them to be used, for example, to pay taxes on the extraction of certain minerals, retail sales tax, so-called sugar tax, shipbuilding tax, "jigger fee," and tonnage tax.
A system of VAT penalty gradation has been introduced, requiring consideration of the taxpayer's economic situation. This means that tax authorities, when determining VAT penalties, will take into account specific circumstances of each case, and the penalties will be individualized.
The requirement to have an invoice for intra-Community acquisition of goods (WNT) when deducting input tax on this account was abandoned. Provisions have been introduced to allow corrections to be submitted outside the OSS and IOSS systems directly to the Łódź Tax Office.
The rules for the use of the conversion rate for correcting invoices where the invoice is issued in a foreign currency have been clarified, as well as the possibility of using the rate from the day before the issuance of the collective correcting invoice.
Introduction of the possibility of waiving the adjustment if the difference between the preliminary proportion and the final proportion does not exceed 2 percentage points.
The obligation to agree in the form of a protocol with the head of the tax office on the proportion to deduct input tax was eliminated. However, the necessity to notify the head of the tax office of the adopted proportion was introduced.
The amount allowing the recognition that the proportion of deduction determined by the taxpayer is 100%, in a situation where the proportion exceeded 98%, was increased from the current 500 PLN to 10000 PLN.
The transfer of funds between VAT accounts in a group has been regulated - the possibility of transferring funds from the VAT account of a group member to the VAT account of the group representative has been introduced.
Simplification was introduced in the scope of reporting settlements related to invoicing (e.g. adapting the conditions for issuing invoices to e-receipts) and keeping sales records using cash registers (e.g. the possibility of waiving the obligation to print fiscal documents by taxpayers). A new electronic receipts distribution system was introduced.
Consolidation of issuing binding tax information by designating a single authority responsible for issuing WIS (binding individual tax interpretations), WIA (binding tax rulings), WIT (binding tax information) and WIP (binding tax opinions), which will be the Director of the National Tax Information.
The regulations regarding the principles of issuing and applying WIS and WIA, i.e., binding national tax information, have been harmonized. The fee for requesting the issuance of WIS has been abolished.
Most of the changes come into effect on July 1, 2023, while some of them are already in force, such as the provisions regarding VAT penalties.
Under Labour Code Art. 6720, the employer should set forth the rules for remote work in the following documents:
If employees use their own equipment, the employer is required to pay them a cash equivalent.
The regulations do not set the amount of the equivalent, but indicate that in determining it, the following in particular should be considered: the standards for consumption of materials and use of working tools, including technical devices, documentation of their market prices, and quantities of materials used for the employer’s needs and market prices of such materials, standards for consumption of electricity, and costs of telecommunications services.
The employer will not be obligated to organize the remote workstation in compliance with occupational health and safety rules and regulations, or to exercise care for the state of the premises and technical equipment. The employer can conduct initial health and safety training online, as well as periodic follow-up training.
Before being admitted to perform remote work, the employee must sign a statement prepared by the employer (in paper or electronic form) concerning occupational health and safety rules, as well as a declaration that the remote workstation at the place indicated by the employee and agreed with the employer ensures safe and hygienic working conditions.
Important! This declaration must contain the employee’s undertaking to comply with occupational health and safety rules.
It is up to the employee to arrange the workstation to reflect ergonomic requirements, and to keep the workspace clean and fit for work.
Under Labour Code Art. 6728, the employer has a right to inspect the employee’s performance of remote work, occupational health and safety matters, and compliance with rules for security and protection of information, including data protection procedures, under the rules set forth in the agreement between the employer and the trade union or representative organization, the working policy, the employer’s instructions to the employee, or the agreement between employer and employee.
Inspections are to be conducted in agreement with the employee, at the remote work site, during the employee’s working hours. The employer should adjust the method of conducting the inspection to suit the place where remote work is performed and the type of work. Inspection activities must not infringe the privacy of the remote worker or other persons, or hinder the intended use of the household space.
Remote work cannot be ordered or agreed in the case of:
On the issue of occupational risk, the employer may prepare a universal assessment of occupational risk for specific groups of remote workstations. Then, before being admitted to perform remote work, the employee must confirm in writing or electronically that he or she has reviewed the professional risk assessment and the information concerning occupational health and safety rules for performing remote work, and undertakes to comply with them.
The professional risk assessment should contain information concerning:
On-the-job accidents when performing remote work:
In the case of remote work, employers will have to apply as relevant the Labour Code provisions concerning work accidents set forth in Art. 234 §1 and 237 §1(1)–(2). The employer should conduct an inspection of the accident site after an accident during remote work is reported, within a time agreed by the employee, or a household member if the employee is unable to agree on a date due to the employee’s health condition, and members of the post-accident team.
The post-accident team can waive the inspection of the site of an accident during remote work if the team finds it has no doubts about the circumstances and causes of the accident (Labour Code Art. 6731 §10).
The Social Insurance Institution (ZUS) will decide questions of payment of accident insurance benefits and whether the employee is entitled to such benefits. ZUS will also decide whether the accident was caused by the employee intentionally or as a result of gross negligence.
If an accident occurred during remote work by an employee under the influence of alcohol, narcotics or psychoactive substances, and the employee significantly contributed to causing the accident, medical documentation will be required before awarding accident insurance benefits.
Under the regulations governing remote work, for the purpose of assigning overtime work and calculating overtime pay, overtime work by remote workers should treated as if it were performed at the workplace (Labour Code Art. 151 and following).
Assignment to remote work does not in itself constitute a change in the permanent place of work, but only enables work to be performed at a place other than the permanently fixed location. As a rule, if an employee working remotely is instructed to visit the office, it will not constitute business travel.
The Regulation of the Minister of Family and Social Policy of 6 March 2023 (Dz.U. 2023 item 471) amending the Regulation of the Minister of Family, Labour and Social Policy of 10 December 2018 on Employee Documentation (Dz.U. 2018 item 2369), which entered into force on 7 April 2023, expands section B of the personnel files to include documents concerning performance of remote work.
These documents should be stored in section B of the employee’s personnel file. If the employer maintains personnel files in paper form, and receives a document in electronic form, the employer should print it out and certify that it conforms to the document submitted electronically.
The amendment introduces further solutions to simplify and accelerate VAT settlements.
The Ministry of Finance has so far introduced two packages designed to simplify VAT settlements, namely SLIM VAT 1 and SLIM VAT 2.
The new third edition of SLIM VAT 3:
The full text of the Act can be consulted at this link.
According to Article 177 § 1 of the Labor Code, during the period of paternity leave or part thereof, until the date of termination of such leave, the employer may not:
Paternity leave duration
The duration of paternity leave has not changed and remains at 2 weeks (Article 1823 § 1 of the Labor Code).
The condition for granting this leave is for the employee, the father, to submit an application in paper or electronic form no later than 7 days before the start of the leave.
Paternity leave may be taken in parts, with the proviso that none of the parts may be less than a week (a week is to be understood as 7 consecutive calendar days (Art. 1831§ 1 of the Labor Code in conjunction with Art. 1823 § 1 of the Labor Code).
In the event that an employee applies for paternity leave earlier than the legal deadline for such application, the protection will only take effect from the legal deadline, i.e.: 7 days before the commencement of paternity leave or part thereof.
The employer is obligated to consider the employee's request. Refusing to grant paternity leave to an employee who meets all the requirements specified by law is a violation of the employee's rights and is subject to a fine (Article 281 § 1 point 5 of the Labor Code).
The request for granting paternity leave or a part of it to the employee-father should include:
The request should be accompanied by the documents specified in § 16 of the regulation on applications concerning employee entitlements related to parenthood:
For more information on claiming maternity benefits for the period of paternity leave by a self-employed father of a child, click HERE. https://www.zus.pl/-/jak-uzyskac-zasilek-macierzynski-przez-ojca-dziecka-za-okres-urlopu-ojcowskiego
Pursuant to Article 36 of the Law of March 9, 2023, amending the Labor Code and certain other laws (Journal of Laws of 2023, item 641), an employee being a father raising a child on the date of entry of the amendment into force is entitled to paternity leave under the rules set forth in the existing regulations, but only until the child completes:
In the case where the Social Insurance Institution (ZUS) is the payer of the maternity benefit during the period of paternity leave, the father of the child must submit the following documents:
Under Labour Code Art. 6720 §6, the rules for remote work set forth in the agreement or policy should address the following issues:
Under Labour Code Art. 6724, the employer must:
In the case of remote work, the following will also be required on the part of the employer:
If remote work is performed on the basis of agreement upon conclusion of the employment contract, the written notice of employment conditions referred to in Labour Code Art. 29 §3 should also specify the organizational unit to which the employee’s workstation is assigned and indicate the persons responsible for cooperation with the employee and authorized to conduct an inspection at the site where remote work is performed.
If remote work is performed on the basis of agreement concluded during the course of employment or based on the employer’s instruction, the employer will have to provide the aforementioned notice to the employee, in paper or electronic form, no later than the date when the employee begins performing remote work.
The definition of remote work is set forth in Labour Code Art. 6718: remote work is work consisting of performance of the employee’s duties wholly or partly at the employee’s place of residence, agreed in each instance by the employee and the employer, using means of communication at a distance.
The decision to perform remote work may be taken:
A change from stationary work to remote work may be made at the initiative of the employer or the employee. This possibility exists both upon conclusion of the employment contract and during the course of employment.
Remote work at the employer’s instruction:
The employer can assign remote work in the following instances:
The employee must confirm, in a declaration on paper or electronically, that he or she has the proper space and technical conditions to perform remote work.
Important! The employee’s declaration that he or she has the proper space and technical conditions to perform remote work must be submitted immediately prior to issuance of the instruction.
Employee’s request for remote work:
An employer must grant a request for remote work submitted by:
Important! The employer’s refusal to allow remote work must be justified in the situation, where remote work is not possible for reasons of work organization or the type of work performed by the employee. The employer must notify the employee of the reason for refusal to grant the request in writing or electronically within 7 days after the employee submits the request.
The new regulations also provide for “occasional remote work.” Remote work may be performed occasionally, at the employee’s request made in writing or electronically, for a duration not exceeding 24 days within the calendar year.
Reimbursement of costs of occasional remote work: the employer can reimburse the employee for costs directly connected with such work. Under the Personal Income Tax Act, the reimbursed costs will not be taxed as the employee’s income.
Inspection of the performance of occasional remote work, and compliance with occupational health and safety regulations and data protection procedures, is conducted under rules agreed with the employee. This solution was introduced because the rules for performance of occasional remote work will not be specified in workplace policies.
If remote work was agreed during the course of the employment relationship, either party may submit a binding request, in paper or electronically, to restore stationary work.
The parties will agree on the date for restoring the prior working conditions, but no longer than 30 days after receipt of the request. If the parties cannot agree on the date, the prior working conditions will be restored 30 days after receipt of the request.
Important! The employer cannot make a binding request to cease remote work and restore the prior working conditions in the case of the following employees performing remote work at their own request:
However, even in these cases, remote work can be ended if work can no longer be performed remotely due to the organization of the work or the type of work performed by the employee.
The most important change compared to the previous version is the introduction of an obligation for the VAT payer making the payment for a structured invoice via direct debit or transfer order, or another payment instrument enabling the transfer of funds, to provide the invoice identification number or the collective identifier identifying the invoices in KSeF.
So far, in bills introducing mandatory KSeF, the aforementioned obligations only concerned situations in which a payment was made in the split payment mechanism.
This obligation will apply to all VAT taxpayers registered in Poland for VAT purposes (including foreign entities).
According to the draft law, this obligation will enter into force on January 1st, 2025.
No other significant changes were made to the draft, however, obligations related to a KSeF failure were made more precise.
You can read the draft amendment of the Act on the Parliament website.
Previous periods of employment are included in the six-month seniority period, which means that if an employee worked 4 months at another company before applying for parental leave, but did so under a contract of employment, they are entitled to such a leave.
According to Article 186 § 2 and § 3 of the Labor Code, the dimension of parental leave is:
Each parent or legal guardian is entitled to an exclusive right to one month of parental leave within a 36-month leave entitlement period. This right cannot be transferred to the other parent or legal guardian. If one parent or guardian has exercised this right, the leave can last for a maximum of 35 months.
Both parents or guardians of the child can simultaneously go on parental leave, but it should be noted that the total duration of parental leave cannot exceed the maximum limit specified in §2 and §3 of Article 186 of the Labor Code.
A parent of a child is entitled to up to 36 months of parental leave if:
The application in paper or electronic form must be submitted no less than 21 days before the start of the leave. The employer is obliged to grant the employee's request.
If the application is submitted after the deadline, the employer shall grant parental leave no later than 21 days from the date of the application’s submission.
The application can also be withdrawn no later than 7 days before the scheduled start of the leave by submitting a statement to the employer in paper or electronic form.
A parent who wishes to cease their ongoing parental leave may do so at any time, meaning they can return to work from one day to the next, but with the employer's consent or by providing prior notice to the employer, no later than 30 days before the intended date of resuming work. (Article 1863 of the Labor Code).
During parental leave, an employee has the right to take up paid employment with their current or another employer, or engage in other activities, if it does not prevent them from personally caring for the child.
However, if it is determined that the employee has permanently ceased to provide personal care for the child, the employer shall summon the employee to report to work on the date specified by the employer, no later than 30 days from the date of receipt of such knowledge and no earlier than 3 days from the date of the summons. In such a case, we are dealing with the termination of parental leave before the predetermined date.
According to Article 1868 § 1 of the Labor Code, an employer may not terminate or dissolve an employment contract during the period from the date on which an employee eligible for parental leave applies for:
Employer termination of the contract is permissible only in the event of bankruptcy or liquidation of the employer, as well as when there are justifiable reasons for terminating the employment contract without prior notice due to the employee's fault.
In cases where an employee submits a request for parental leave more than 21 days before the start of using parental leave or reduced working hours, the prohibition of contract termination and notice of termination of employment begins to apply 21 days before the start of the leave or of the reduced working hours.
On April 18th, 2023, the Finance Minister's Decree of March 30, 2023, on records kept by members of a VAT group was published in the Government Journal under item 727. The regulations apply to a narrow group of taxpayers such as the VAT group, or in fact its members, and will go into effect on July 1st 2023.
Since January 1st, 2023, another type of VAT payer has been operational in the Polish legal order - the VAT group. Pursuant to current regulations, a VAT group may be created by financially, economically and organizationally related entities.
The institution of a VAT group is voluntary and depends on the decision of the entrepreneurs forming the group. As Article 8c(1) of the VAT Law indicates, the supply of goods and services made by a member of a VAT group to another member of the same VAT group is not taxable.
As a result of the introduction of the provisions for the new JPK_GV logical structure (1) on July 1st, 2023, members of a VAT group will be required to send records to the tax office with jurisdiction over the VAT group representative by electronic means of communication, for monthly periods, by the 25th of the month following each month. The record will be prepared and submitted separately by each member of the VAT group, in the scope of supplies and services provided to other members of the VAT group. The need to provide such records will also occur in the absence of transactions for the supply of goods or services between members of the VAT group in a given settlement period.
The published regulation specifies the detailed scope of data contained in the records and the method of presenting data in the records, taking into account the need to counteract tax evasion or avoidance by the VAT group, control of the obligations of the VAT group by the tax authority, and the technical and organizational possibilities of keeping the records by the members of the VAT group.
The new records of the JPK_GV structure (1) will need to contain the following data:
In addition, these records may include:
You can read more about the aforementioned regulations and appendix on the method of indicating data in the records, under the following link.
Entrepreneurs should pay particular attention to changes in tax law ensuing from cancelling the state of epidemic emergency.
The obligation of reporting tax schemes other than those of a cross-border nature, i.e., so-called national schemes, has been in suspension since March 31st, 2020. The planned cancellation of the state of epidemic emergency on July 1st, 2023, means that the suspension period of MDR reporting deadlines will cease 30 days after lifting the state of epidemic emergency.
If the draft regulation enters into force, the obligation to report national schemes will return. Taxpayers will have to settle their reporting obligations for the last 3 years.
Important: Failure to comply with the MDR obligations is subject to sanctions, which may amount to as much as PLN 33.5 million. Therefore, taxpayers should analyze transactions which took place during the period when the reporting deadlines were suspended.
Applicable regulations provide that in case of residency certificates with no expiry date, in relation to which the period of the next 12 months expires during the state of epidemic emergency, or during the state of epidemic announced in regard to COVID-19, the tax remitter is obliged to take such a certificate into account when collecting tax within the duration of these states and for a period of 2 months after their cancellation.
In effect of canceling the state of epidemic emergency on July 1st, 2023, from September 1st, 2023, payers will not be able to take into account residence certificates without a validity period after twelve months from the date of their issuance.
Additionally, during the state of epidemic emergency announced in connection with COVID-19, and for 2 months following its cancellation, the condition of obtaining a certificate of residency by the payer from the taxpayer is also fulfilled when the payer has the taxpayer’s certificate of residence covering the years of 2019 or 2020, along with the taxpayer's statement as to the validity of the data contained therein.
Important: After 2 months following the cancellation of the state of epidemic emergency, payers using certificates covering 2019 or 2020 should obtain current residency certificates.
Until the state of epidemic emergency is lifted, the deadline for issuing individual interpretations has been extended by 3 months. The Director of the National Tax Information should issue individual interpretations without undue delay, no later than within 6 months from the date of receipt of the application.
Revoking the state of epidemic threat will result in the restoration of standard deadlines resulting from the Tax Ordinance. Hence, tax authorities will be obliged to issue an individual interpretation without undue delay, no later than within 3 months from the date of receipt of the application.
We would like to remind you that if the buyer makes a payment for an invoice issued by an active VAT payer with the value equal to or exceeding PLN 15,000 to an account other than that included on the date of the transfer order in the list of entities referred to in Art. 96b sec. 1 of the VAT Act (the so-called white list of VAT payers), the buyer has no right to include such an expense in their tax deductible costs. Furthermore, the buyer is jointly and severally liable with the seller for the VAT liability.
However, the buyer has the option of avoiding negative consequences if they submit a ZAW-NR notification to the relevant tax office within the specified period.
During the state of epidemic emergency and the state of an epidemic announced in connection with COVID-19, the deadline for submitting the notification to ZAW-NR has been extended to 14 days from the date of ordering the transfer.
As a result of lifting the state of epidemic threat on July 1st, 2023, the standard 7-day deadline for submitting a notification on the ZAW-NR form will apply.
The current regulations provide for various simplifications withing the scope of transfer pricing, i.e.:
Cancellation of the state of epidemic threat will result in taxpayers being deprived of the right to use these simplifications.
Pursuant to Art. 57 § 1 of the Tax Ordinance, in decisions on the deferral of the tax payment deadline or spreading the payment of tax into installments, and in decisions on the deferral or spreading into installments the payment of tax arrears together with interest for late payment, or interest on unpaid tax advances, a prolongation fee is determined on the amount of tax or tax arrears.
The provisions of the acts related to COVID-19 indicate that during the period of epidemic threat or within 30 days following its cancellation, the extension fee is not determined.
If the state of epidemic threat is canceled, the extension fees in the decisions above (i.e., decisions issued based on Article 67a § 1 pt. 1 or 2 of the Tax Ordinance) will be determined anew.
The provisions of the PIT Act and CIT Act specify that tax deductible expenses do not include contractual penalties and compensation for damages and defects of delivered goods, or of services provided; as well as delays in delivering goods free of defects, or delays in removing defects in goods, or in services provided.
Laws introduced in connection with COVID-19 indicate that the aforementioned provisions do not apply to paid contractual penalties and damages, if the defect of the delivered goods, performed works and services, as well as the delay in the delivery of goods free of defects or the delay in the removal of defects in goods or performed services, arose in connection with the state of epidemic threat or the state of epidemic announced due to COVID-19.
Revoking the state of epidemic emergency on July 1st, 2023, would exclude the possibility of including contractual penalties and compensation for damages or defects in goods delivered, or services provided, as well as delays in delivering goods free of defects or delays in removing defects in goods, or performed services, as tax deductible costs.
We will keep you informed about the progress of work on the draft regulation on canceling the state of epidemic threat and related changes in tax law.