Explanations regarding how to file and what to include in a declaration on preparing local transfer pricing report has been published on the Ministry of Finance’s website. The information concerns declarations submitted under the new laws applicable from 1 January 2019 if they are applied to transfer pricing reports covering 2018 (link). This newsletter offers a detailed explanation of that issue.
Let us remind that pursuant to Article 44(2) of the Act on the Amendment of the Act on Personal Income Tax, the Act on Corporate Income Tax, the Tax Ordinance Act and Several Other Acts dated 23 October 2018 (Dz.U. [Journal of Laws] 2018, item 2193 as amended, hereinafter referred to as the Amendment), an entity which prepares transfer pricing report may choose which tax regime it would apply to transactions taking place after 31 December 2017. If it chooses the amended laws, applicable as of 1 January 2019, it would have to submit a new declaration electronically. For more details see below.
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HOW TO SUBMIT THE DECLARATION
Firstly, the form of the declaration submitted by a Polish entity has changed. Now it is to be submitted only electronically. Until now, it was also possible to submit a paper declaration. The declaration should be submitted to the electronic mailbox address of the tax office via the Electronic Platform for Public Administration Services ePUAP (link). What is important, to submit a declaration, an entity (a taxpayer) will need to have its mailbox on the ePUAP platform – a form of communication that has so far been rather rarely used (therefore, it is recommended to have it set up in advance, now, rather than in September). To send the declaration you should select the "General letter to the public entity" service according to the current template of the general letter made available in the Central Electronic Document Pattern Repository (CRWDE) ePUAP and select the field "Other letter" from the drop-down list. The service of sending a general letter is also available on the following websites: obywatel.gov.pl (link) and biznes.gov.pl (link).
WHAT INFORMATION MUST BE CONTAINED IN THE DECLARATION
The obligatory elements of the declaration on the preparation of local transfer pricing report may be divided into formal and substantive elements. Formal elements do not result directly from the provisions of the income tax acts, but the Ministry of Finance indicated that the declaration should include the data of the entity submitting the declaration, such as:
- full name / name and surname - for declarations made by natural persons not conducting business activity;
- tax identification number, and if there is none - other identification number with the indication of its type;
- address (country, town/city, post code, street, building number, apartment number) of the registered office or management board, and for individuals - residential address;
- indication of each signatory's position in the given entity.
The substantive elements are listed directly in Article 11m(2) of Act on Corporate Income Tax (Article 23y(2) of the Act on Personal Income Tax) and specified by the Ministry of Finance. According to the Ministry’s explanations, the declaration must include the following information:
- that local transfer pricing report for a given financial year (2018) has been already prepared;
- that transfer prices of the controlled transactions covered by local transfer pricing report are set on such terms as would be agreed between non-affiliated parties (in other words they follow the “arm’s length principle”);
- that transfer prices with respect to transactions and agreements indicated in Article 11o(1) of Act on Corporate Income Tax (Article 23za(1) of the Act on Personal Income Tax respectively) and included in the local transfer pricing report are set on such terms as would be agreed between non-affiliated parties, none of which has their residence, registered office or management in the territory or in the country applying harmful tax competition (applies to taxpayers performing transactions with entities from the so-called tax havens).
SIGNING THE DECLARATION
The declaration is made (under pain of fiscal penal responsibility) by the entity’s manager within the meaning of the Accounting Act, i.e. for companies - a member of the management board or another governing body, and if the body is a multi-person body - members of this body, excluding attorneys appointed by the entity. Where several persons meet the criteria of a head of the entity or if it is not possible to identify a head of the entity, the declaration may be signed by any person authorised to represent the entity. At the same time, the Ministry of Finance recalls that the declaration (general letter) should indicate the function of each person signing the declaration. The declaration is signed with a trusted signature or a qualified certificate (signature). According to the explanations, more than one person may sign the declaration electronically. You will find instructions for affixing more than one trusted signature to an electronic document, creating an entity's account and inviting users to this account at epuap.gov.pl.
To sum up, the very content of the Ministry of Finance's explanations only confirms the provisions of the new regulations, yet the fact that the Ministry has decided to provide additional explanations deserves approval. The most important changes with regard to declarations that were made on the basis of the provisions in force until the end of 2018 include the extended scope of the information to be declared and the precise indication of the person obliged to sign the declaration. The form of submission of the declaration has also changed. The deadline for the submission of the declaration remains unchanged and expires on the ninth month after the end of the financial year - for most taxpayers it will be 30 September 2019. However, taking the extended scope of the declaration and sanctions into account, which have been provided for in the Fiscal Penal Code, e.g. for false statements, we strongly recommend that you analyse your transactions with affiliated parties with respect to reporting obligations or contact our experts who will be happy to support you in preparing your declaration on the preparation of local transfer prices documentation.
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Should you have any questions or need to discuss the topic, we encourage you to contact out expert, Tomasz BEGER:
tel. +48 61 8515 766
fax +48 61 8515 786