New EU regulation with direct application in Poland

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EU regulation and EU Directives

  • EU regulations - directly applicable in the Member States.
  • EU directives - they indirectly affect the provisions of the Member States and thus oblige them to establish a certain legal order. Thus, the Member States may use the provisions of the Directive directly only if they do not have such a legal order or have created national provisions that are inconsistent with the Directive.

New EU regulation in Poland

The VAT system in Poland is part of the EU VAT system. Its framework is set out in Directive 2006/112 / EC. The new EU implementing regulation No. 282/2011 of March 15, 2011 (establishing implementing measures for Directive 2006/112 / EC and clarifying the existing legal regulations) entered into force on July 1, 2011 and is directly applicable in Poland, but without the need to publication in the Polish Journal of Laws. Therefore, the Polish legislator does not have to adopt national provisions analogous to the new regulation and introduce them to the implementing regulations to the VAT Act or to the VAT Act itself. Nevertheless, Poland has prepared such a project. However, the proper application of the provisions of the new EU regulation requires knowledge of both Polish VAT regulations and the Directive.

Some provisions of the new regulation

    1. Articles 10–41 specify the rules for determining the place of taxable transactions as defined by the provisions of Art. 43-59 of the Directive (the Polish equivalent is: art. 28a-28o of the VAT Act concerning the place of supply):

      • Permanent place of residence - implies the actual address indicated by the natural person (applies to taxpayers and non-taxpayers) to the relevant tax authorities and the address appearing in the national population register or other similar register.
      • Habitual residence - is the place where a given natural person (applies to taxpayers and non-taxable persons) lives for the sake of personal and professional life or only for the sake of personal life, if the person works abroad or has no connection at all professional.
      • The place of the seat of the economic activity of a given taxpayer, i.e. the place where the president of the management board of the enterprise is performed - this is the place where important decisions related to the management of the enterprise are made and where management board meetings are held. In addition, it is the official address of the registered company we are sitting on. However, the address itself is not treated as the place of business of a given taxpayer, all the above-mentioned conditions must be met.
      • Fixed place of business - a place other than the place of business of the taxpayer with appropriate stability, the possibility of receiving and using the services provided for the own needs of this permanent place, and an appropriate structure of personnel and technical facilities.
    2. Articles 18–25 specify the rules for determining the status of the recipient, the nature in which he operates and the place of his seat:

      • Determining the place of supply of services - only the circumstances of a certain event that triggers the emergence of the tax obligation are taken into account. This place depends on the status of the recipient: whether or not he is a taxable person. For the purposes of determining the place of supply, a non-taxable legal person should be treated as a taxpayer because it is registered or obliged to register VAT for the intra-Community acquisition of goods subject to VAT or taking advantage of the possibility of taxing this acquisition with VAT.
      • Determining the place of establishment of the recipient - service providers determine it on the basis of information received from the recipient after prior verification using commercial security measures.
      • Determining the recipient's fixed place of business - the service provider should first of all take into account the nature and application of the service provided and verify (on the basis of the VAT identification number and the contract) the truthfulness of the fixed place of business indicated by the customer as the place of receipt of the service.
      • Determining the status of the recipient of the service:

- when he is established in the Community:

    1. service providers who know little or nothing about recipients will consider them to be taxable persons when they provide the service provider with their individual VAT identification number and the service provider confirms its validity and the names and addresses assigned to that number. Recipients who do not yet have this number are required to provide the service provider with other proof that they are a taxable person or a non-taxable legal person. In this case, the provider may also use identity or payment means for verification purposes;
    2. if the supplier does not obtain an individual VAT identification number from the customer, or any evidence of his status, he may be considered as a non-taxable person. Moreover, a taxable customer can be considered a non-taxable person when he receives the services only for private use.
  1. Art. 53 sec. 1 clarifies Art. 17 sec. 1a of the VAT Act - the buyer is not required to settle VAT as part of the delivery of goods or the import of services, when the service provider (or the one performing the delivery) has a permanent place of business in the country that participates in a given supply of goods or services. However, this place, in order to participate in the delivery of goods or services, should be characterized by an appropriate constancy and structure in the personnel and technical facilities. In turn, these facilities must be used to carry out the taxable transaction in that Member State before or during the supply of goods and services.

  2. Intra-Community acquisition of goods - the Community country in which the shipment or transport of goods has ended must fulfill its tax obligations. On the other hand, the Member State of commencement of shipment takes into account a possible correction of the invoice in accordance with national law. The transaction is also subject to taxation when the goods arrive in Poland and the buyer provides his tax identification number (NIP) preceded by the PL prefix.

  3. Electronic services - the catalog of non-electronic services has been expanded, including radio, television and telecommunications broadcasting services.

  4. In Poland, the import of movable property is subject to a 0% rate with the right to deduct. It is similar in the case of electronic services, when the taxpayer providing them is subject to the procedure provided for in Art. 357–369 of the Directive (Polish equivalent: provisions of Articles 131–134 of the VAT Act).

  5. A taxpayer with a place of business in the territory of a Community country is obliged to settle the tax on his own, regardless of whether that place is involved in the supply of goods or services in the territory of that country or not.

  6. The obligation to provide EU VAT number by a taxpayer participating in intra-Community acquisitions and supplies (also in triangular transactions) and the provision of certain services has been clarified. This does not apply to a taxpayer using the provision of art. 10 of the VAT Act.