Value of transactions
It is planned to correlate the value of controlled transactions with whether the taxpayer is an active VAT payer. If the taxpayer is an active VAT payer, VAT is neutral for the taxpayer, and under the proposed amendment, the value of VAT on a controlled transaction would not be included in calculating the value of the transaction. On the other hand, for taxpayers who are not active VAT payers, VAT is not neutral, and thus, for them, the value of VAT on a controlled transaction would be included in calculating the value of the transaction.
The bill also provides for a more precise manner of calculating the value of a controlled transaction for a deposit, insurance or reinsurance agreement, or a partnership agreement (for an entity that is not a legal person).
The proposed method for determining the value of such transactions is as follows:
- Deposit agreement—value of principal
- Insurance contract—insured amount
- Reinsurance agreement—insured amount
- Partnership agreement (not a legal person)—total value of contributions.
The bill provides for a number of extensions of deadlines related to transfer pricing obligations. First, the bill would extend the deadline for preparing local transfer pricing documentation through the end of the 10th month, and for submitting the TPR form through the end of the 11th month, after the end of the taxpayer’s tax year. Currently the deadline for local transfer pricing documentation and the TPR form is 9 months.
The deadline for presenting the transfer pricing documentation to the tax authority in case of an audit is to be changed from the current 7 days to 14 days.
The proposal includes elimination of the separate statement on preparation of transfer pricing documentation and maintenance of the market nature of transactions. Instead, the statement would be included in a modified form applicable to the taxpayer, TPR-C for a corporate income tax payer or TPR-P for a personal income tax payer.
Taxpayers would declare in the statement on preparing local transfer pricing documentation that the local transfer pricing documentation was prepared in accordance with the actual state of affairs and that the transfer prices subject to the documentation were established under terms and conditions that would be agreed between unrelated parties.
According to the proposal, the arm’s-length nature of a transaction to be declared under the relevant TPR form would also need to be maintained where tax revenue is recognized from services that are gratuitous or partially gratuitous, or other benefits in kind that constitute revenue. Income from such transactions would have to be recognized for tax purposes in accordance with the arm’s-length principle.
Transfer pricing information (Form TPR-C/TPR-P)
According to the bill, taxpayers would submit transfer pricing information, i.e. the appropriate TPR form, to the head of the tax office appropriate to the taxpayer. (Currently the TPR form is submitted to the head of the National Revenue Administration.) Under the proposed changes, partnerships (not legal persons) would also be obliged to file transfer pricing information. Such entities would submit the TPR form to the head of the tax office for the registered office or place of business of the partnership. Now this is done by a designated partner of the partnership.
The TPR form is to be filed based on the local transfer pricing documentation, if the taxpayer is obliged to prepare it. In other cases, the TPR form is to be filed based on information in the taxpayer’s financial statements.
According to the bill, the TPR form would be signed in the case of an affiliate that is a natural person by that natural person. However, in the case of a foreign company with a branch in Poland, the person authorized to sign the TPR will be a person authorized to represent the company in the branch.
In addition to the head of the entity or a person authorized to represent it, a proxy acting in accordance with the rules of representation or an attorney for the taxpayer who is an advocate, an attorney-at-law, a tax adviser, or an auditor would also be allowed to sign the transfer pricing information on behalf of the taxpayer.
It is also proposed to abandon the obligation to appoint a partner of a partnership (not a legal person) obliged to submit the transfer pricing information for the partnership. According to the bill, the transfer pricing information would be filed by the partnership, not by a designated partner.