On 1st January 2019, regulations related to the Mandatory Disclosure Rules (MDR) came into force.
These provisions introduce obligations, never known before, for Promoters (i.a. tax advisor, attorney-at-law, legal counsel that provide advisory services to clients), Users (i.e. a company introducing itself MDR), as well as for Supporters (i.e. accountant, auditor, financial director that supports introduction of the tax arrangement that is a tax scheme).
In principle, these obligations impose a timely electronic reporting of the tax schemes to the Head of National Revenue Administration (NRA) (not only about tax optimisation but also legal and factual acts in which the tax payer is a party and that result/can result in tax obligation or the lack of such an obligation – an arrangement). No reporting is threatened with heavy fines from PLN 750 to PLN 21.6 million. The tax scheme presented to the Head of NRA will obtain a tax scheme number (pol: numer schematu podatkowego – NSP).
Unfortunately, new regulations are not clear and it is not obvious what kind of arrangement is a reportable tax scheme, however the reporting deadline is in principle 30 days (from the date of i.a. disclosure/implementation/becoming aware of the scheme disclosure). However, due to difficulties related to the understanding of new regulations, the Ministry of Finance postponed the deadline for reporting till the end of February (and in practice till the end of April, as such delays will be considered as minor cases). Are subject to reporting schemes disclosed yet from the 1st November 2018 and cross-border schemes from 25th June 2018 and for these situations reporting is postponed till mid-2019.
Are subject to reporting only schemes concerning a so-called Qualified User, i.e. for which:
- incomes or expenses or assets value for the previous or the current year exceeded EUR 10 million;
- the arrangement concerns properties or laws for the market value exceeding EUR 2.5 million;
- the user is related with the entity (Qualified Entity, although the user’s incomes/expenses/assets do not exceed EUR 10 million).
Note: In case of cross-border tax schemes (concerning income tax and having an impact on CIT taxation in two different countries and not only in Poland, the question of creation or not of permanent establishment) reporting is compulsory even for Users (tax payers) who are not Qualified – exception to the criterion of Qualified User.
Reporting obligation will be as first the Promoter’s obligation. This means that the tax advisor (the lawyer or another entity) will have to report the arrangement that is a tax scheme to be disclosed/implemented within the Client or the User activity – form MDR-1.
Note: We do not have to report a tax opinion (consultation) but the factual or legal act to be realized by the Promoter’s client and which was previously recommended by the Promoter in order to reduce taxes!
According to explanations of the Ministry of Finance, in principle are not subject to reporting:
- tax reviews;
- preparation of transfer pricing file;
- opinions and commentaries on taxes (presenting tax impacts, risks, especially on acts already performed by the tax payer);
- tax advisory services on procedures to be implemented by the tax payer, to ensure compliance of his settlements with binding provisions and tax practice;
- on-going tax advisory;
- representation of the client;
- preparation of statements for tax purposes;
- preparation of calculations/declarations/tax returns.
In principle, the Promoter is not obliged to report actions that he performs, if they have only a describing and not a creative nature. Moreover, for standardized schemes (concerning arrangements that can occur/occur in case of many Users without significant change), which means the majority, reporting by the Promoter does not include data concerning the User (because of professional secrecy).
NOTE: Can be Promoter also an employee of the given company, for example an internal tax advisor (an in-house)/financial director/accountant if first this person prepares/implements the tax scheme in her/his own company and then discloses/helps implementing it in the related company. In such situation, the company should report the implemented tax scheme as User (Promoter will not proceed to such reporting, as the scheme has been prepared by the Company, without the Promoter’s help) and simultaneously as a Promoter acting on behalf of another company from the group.
The tax payer reports the tax scheme that has been disclosed to him only when the Promoter will not do it (or if the User did not release the Promoter from the obligation of professional secrecy for schemes not being standardized ones) – form MDR-1.
The tax payer reports also the tax scheme he is using (in case he introduced this scheme himself, without the help of the Promoter) as a User – form MDR-1.
Additionally, along with deadline of tax return for a given period, in which acts regarding implementation of the arrangement have been performed or he obtained a tax profit as result of the arrangement implementation, the User submits a form MDR-3.
NOTE: tax exemptions and preferences that result directly from tax provisions, are not subject to reporting (for example exemption for new technologies, accelerated depreciation / tax-deductible expenses /choice of VAT taxation when selling the real estate).
The Supporter (the person providing with support/help in disclosure or implementation of the scheme) reports the tax scheme only when neither the Promoter nor the User had do it (the Supporter reports lastly).
A Supporter is for example an auditor (but not as a statutory auditor during a statutory audit of the financial statements) but only realizing an engagement of the User by performing other, additional tasks (for example financial advisory).
It can also be an Accounting Firm that prepares tax returns and an accountant employed within this Firm can act as Supporter (given the fact his services have professional nature) and he could have noticed that the given arrangement considers a tax scheme.
A Supporter that wants to express an uncertainty that the arrangement can be considered a tax scheme, shall submit a written request to the Promoter or to the User within 5 working days (!!!) for providing him with declaration that the arrangement is not a scheme. In the same time, the Supporter informs the Head of the National Revenue Administration about his/her doubts within 5 working days.
If the Supporter does not receive information from the Promoter/the User or information will not to meet the concerns expressed or if the Supporter notices without any doubt that the given arrangement (for example actions that are recorded in the accounting system or actions that he/she helps in some way to implement – for example a notary preparing the notarial deed or tax advisor who does not disclose a scheme but he performs some actions in relation with the scheme) is a tax scheme, therefore the Supporter informs the Promoter/the User about this fact (form MDR-2 – submitted in electronic form, the same way as other forms).If these persons do not report about the given scheme, this is then the obligation of the Supporter who should report it within 30 days (form MDR-1).
Each Promoter (but not a Supporter), whose income and expenses in the previous year did not exceed PLN 8 million is obliged to introduce an internal procedure ensuring to meet the obligation to transmit information about tax schemes. In case of lack of the procedure, the penalty goes to PLN 2 million.
This means that a company authorised to provide services of tax advisory should have implemented such a procedure, as well as a law firm, of course if the threshold of PLN 8 million has been exceeded.
NOTE: the procedure (once the threshold of PLN 8 million exceeded) should be implemented by each firm that implements tax schemes in other companies of the same group, this company acts as Promoter (for example a financial director prepares tax scheme for his company and then this solution is implemented in other related entities). We therefore prudentially advise to prepare such a procedure, it concerns especially the companieswhich income/expenses exceeded the threshold of PLN 8 million and which function within a capital group and then can be in the situation of the Promoter).
In order to minimise the risk, we also recommend an audit of tax solutions applied within the company, to meet the requirement of reporting the tax schemes (especially in case when the company implemented itself the tax scheme, without support of an external entity).