Importing personal belongings when moving to Poland and the obligation to pay VAT
One of the activities subject to VAT taxation is import. The tax obligation also arises in the case of natural persons who do not conduct business activity. Therefore, it is worth considering how the provisions of the VAT Act regulate the issue of importing personal belongings to the Republic of Poland in the event of moving to our country.
Import as an activity subject to VAT
At the outset, let us note that in accordance with Art. 2 point 7 of the VAT Act, import of goods is the import of goods from the territory of a third country to the territory of the European Union.
Consequently, each movement of goods from a third country into the territory of the EU constitutes an import of goods. There is no import when goods are moved within the EU.
In addition, it is also worth noting that we will also deal with import when the taxpayer imports his own goods. It should be noted that the condition for the import to occur is the actual and physical movement of the goods. It is not necessary that such a transfer is a result of a concluded contract, e.g. sale.
Next, let us point out that in accordance with Art. 17 sec. 1 point 1 of the VAT Act, taxpayers also include legal persons, organizational units without legal personality and natural persons who are obligated to pay customs duties, also in the case when, on the basis of customs regulations, the imported goods are duty-free or the goods have been suspended, in in whole or in part, or a preferential, reduced or zero rate of duty has been applied.
As a result, in this case, the obligation to settle the output tax rests with the importer of the goods, i.e. the person who transports the goods to Poland.
The content of Art. 26a paragraph. 1 of the VAT Act, which stipulates that the place of importation of goods is the territory of the Member State where the goods are located at the time of their entry into the territory of the European Union. This, in turn, means that if the goods are imported from a third country into the territory of Poland, the tax obligation arises in Poland.
However, the situation would be different if the taxpayer imported the goods to another EU country, e.g. to Germany, and then transported the goods to the Republic of Poland. In such circumstances, the duty to account for import tax would be governed by German tax law.
Import is an activity subject to VAT from the perspective of the importer, who is the person who imports the goods from the territory of a third country into the territory of the Republic of Poland.
Import of personal belongings and exemption
It turns out, however, that people moving to Poland do not necessarily have to worry about VAT in connection with the importation of personal belongings to Poland. We have, in the VAT Act, appropriate tax exemptions provided for in such cases.
As we read in Art. 47 of the VAT Act, the import of personal effects of a natural person transferring the place of residence from the territory of a third country to the territory of the country is exempt from tax, if the following conditions are jointly met:
the items were used for the personal use of that person at the place of residence in the territory of a third country, provided that the goods not intended for consumption must have been used for such use for a period of at least 6 months before the date on which the person ceased to be domiciled in the territory of the third country;
things will be used in the territory of the country for the same purpose as they were used in the territory of a third country;
the natural person has resided in the territory of a third country for a continuous period of at least 12 months preceding the change of residence;
These items cannot be returned as security, sold, rented, lent, leased or otherwise transferred for payment or free of charge without prior notification of the customs authority for 12 months from the date of notification to the procedure for release for free circulation.
It should be remembered that only the fulfillment of all of the above-mentioned conditions gives the right to benefit from the exemption of import from VAT. Additionally, the act introduces a formal condition in the form of an obligation to notify personal belongings for the admission to trading procedure. Such notification should be made within 12 months from the date of transfer of the place of residence to the Republic of Poland.
However, we must point out that the exemption does not apply to any kind of goods. It will not be used to import:
tobacco and tobacco products;
means of transport intended for business activities;
items necessary for the exercise of the profession or occupation, other than items that are portable to applied or liberal art.
In the case of importing the above-mentioned of goods, a taxpayer moving to Poland cannot benefit from VAT exemption.
In the case of importing personal belongings, it is possible to take advantage of the VAT exemption. In terms of formal obligations, it is important to declare goods for release for free circulation.
The condition for the permanent transfer of the living center to the territory of the Republic of Poland
Although the indicated condition was not explicitly mentioned in the wording of Art. 47 of the VAT Act, however, it can be concluded from the available jurisprudence that it is necessary for the move to the territory of the Republic of Poland to be permanent and not temporary.
For example, as we read in the judgment of the Provincial Administrative Court in Białystok of June 12, 2013 (I SA / Bk 137/13), in order to apply the import exemption, the VAT Act requires that a person resettling meets the basic condition, which is the fact of transferring his / her permanent place of residence from the state the third to the territory of the EU. Only the finding of such circumstances gives the basis for the application of the exemption.
It is worth emphasizing that the criteria determining the concept of the place of permanent residence refer to both professional and personal ties of a given person with a specific place, as well as the length of these ties, thus they should be analyzed jointly. Habitual residence should be considered the place where the taxpayer has established his permanent center of interests.
In the described case, when assessing the taxpayer's place of residence, you can also use the provisions of civil law.
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As we read in Art. 25 of the Civil Code, the place of residence of a natural person is the place where the person stays with the intention of permanent residence. Against the background of this regulation, it is commonly argued that in order to indicate a given place as the center of a person's life activity, it is necessary to analyze whether there are two integral components of the place of residence, i.e. animus - a subjective element of this concept expressed in the intention of permanent residence in a given locality.
Therefore, for the determination of the place of residence, it is not sufficient just physical residence, but without the intention of permanent residence, or the mere intention of permanent residence in a given locality, not connected with the stay in that locality. On the other hand, when determining the intention, one cannot limit himself to only declarations, because the intention to stay permanently in a given locality does not constitute residence, but must be connected with staying in a given locality - and with such a stay which has the features of establishing a center of personal and property interests there. .
An elementary condition entitling to take advantage of the exemption when importing goods from a third country to Poland is the actual change of place of residence, understood as the transfer of the living center permanently and with the intention of permanent residence.
Moving on to the summary, it should therefore be pointed out that although a natural person importing personal belongings to Poland in connection with moving to the territory of the Republic of Poland is a VAT taxpayer on this account, it is possible to take advantage of the tax exemption specified in Art. 47 of the VAT Act.