Correction of the declaration after deletion from the VAT register

Service-Tax

Entrepreneurs who are VAT taxpayers are required to submit declarations in which they show transactions subject to tax on goods and services. It often happens that there is a mistake in the declaration, in such a situation, a correction of the declaration should be prepared immediately. The problem arises when the taxpayer has already ceased business and has been removed from the VAT register.

Tax returns

Tax declarations are presumed to be true, i.e. if the provisions of the tax law impose an obligation on the taxpayer to submit a declaration, and the tax liability arises by operation of law, the tax indicated in the declaration is a tax payable. The rebuttal of the presumption that the declaration submitted by the taxpayer is true may take place after the tax proceedings have been completed and concluded with a final decision.

Pursuant to Art. 81 of the Tax Ordinance, the taxpayer corrects the declaration by submitting a correcting declaration. The correction consists in re-filling the form of the VAT declaration and marking it that it is a correcting declaration.

Pursuant to Art. 15 sec. 1 of the VAT Act, taxpayers are legal persons, organizational units without legal personality and natural persons performing independent economic activity, regardless of the purpose or result of such activity.

Economic activities include any activities of producers, traders or service providers, including natural resource harvesters and farmers, as well as the activities of freelancers. Economic activity includes, in particular, activities consisting in the use of goods or intangible assets on a continuous basis for commercial purposes.

However, according to Art. 96 sec.6 of the VAT Act, if a taxpayer registered as a VAT payer has ceased to perform a taxable activity, he is obliged to report the cessation of activity to the head of the tax office; this notification is the basis for the head of the tax office to remove the taxpayer from the register as a VAT payer.

The effect of submitting such a declaration is the removal of the taxpayer from the register of VAT taxpayers. Deletion takes place on the date indicated in the VAT-Z declaration. Then the taxpayer is no longer a registered VAT payer.

De-registration from the VAT register and correction of the declaration

The regulations do not contain regulations in a situation where a contractor has ceased its activity and has been deregistered. In our opinion, both the authority and the taxpayer, a natural person removed from the register of active taxpayers, has the right and obligation to verify the settlement of tax on goods and services by submitting a declaration. This right is limited by the limitation period for the obligation.

Therefore, it should be considered that such a correction of the declaration is admissible and even necessary. However, the tax authorities take a different position, an example of which is the letter of the Director of the Tax Chamber in Katowice of December 29, 2015, file ref. IBPP3 ​​/ 4512-690 / 15 / MN, in which we can read:

(...) entities with the status of a VAT taxpayer have the right to submit declarations and correct these declarations. In the event of loss of the VAT taxpayer status, the above legal regulations do not provide for the possibility of submitting a correction of the declaration, because when the taxpayer loses the status, he loses the right to submit a declaration and thus to correct the declaration.

In the case in question, as at the date of the planned correction of the VAT-7 declaration, the Applicant will no longer conduct business activity within the meaning of the VAT Act (as of November 1, 2015, the Applicant intends to stop performing business activity) and will fulfill its obligations under Art. 96 sec. 6 of the VAT Act. The applicant unequivocally indicated that as at the date of submitting the correction, she would be removed from the taxpayers' register as a VAT payer - she had already been removed.

In this state of affairs, bearing in mind the above-mentioned provisions, it should be stated that in the case at hand, the Applicant will not have the right to correct the VAT-7 declaration after the cessation of business activity (...).

On the other hand, the opposite position, which should be accepted, is presented by administrative courts, as an example we can mention the judgment of SA in Gliwice of October 25, 2016, file ref. act III SA / Gl 360/16, in which we can read:

(...) in accordance with Art. 81 § 1 O.p. the party, despite the termination of its business activity, has the right to submit a correction of the VAT-7 declaration for the period in which it conducted its business activity. When submitting a correction of the declaration, it should be assigned the same status as it had in the period covered by the correction of the declaration. An entity that is no longer a taxpayer may submit corrections or declarations. The correction of the tax return plays the role of a correlation of the self-calculation mechanism, protecting the taxpayer against the negative effects of tax arrears and opening the possibility of a possible refund of the overpayment. However, it will not always be possible to submit a correction of the declaration and an application for overpayment at a given moment. The tax authority itself, in the challenged interpretation, referred to the provisions of Art. 81b § 1 point 1) of the O.p., pursuant to which the right to correct the declaration is suspended for the duration of the tax proceedings or tax inspection - to the extent covered by this proceeding or inspection; and under point 2) of the above-mentioned provision, it is still entitled to: a) tax inspection, b) tax proceedings - to the extent not covered by the decision determining the amount of the tax liability (...).

Perhaps the aforementioned judgment will contribute to a review of views by the tax authorities for the benefit of taxpayers.