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.
Who is a prosumer?
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.
Concerns
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.
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