Tax agreement - what benefits can the taxpayer count on


Under the currently applicable provisions of the Tax Ordinance, a tax agreement is possible between the taxpayer and the tax office. Although this option is intended only for a specific group of entities, it is nevertheless worth taking a closer look at the institution of a tax agreement and explaining what tax benefits it brings.

Tax agreement as an element of the cooperation agreement

First of all, let us point out that a tax agreement can only be concluded by a taxpayer who has a cooperation agreement with the tax office. For these reasons, it is necessary to explain what it is all about.

As we can read in Art. 20s of the Tax Ordinance, the head of KAS may conclude a tax cooperation agreement with the taxpayer, upon his request.

An application for its conclusion may only be submitted by a taxpayer whose income value indicated in the CIT-8 tax return in the previous tax year exceeded the equivalent of EUR 50,000,000, converted into PLN according to the average EUR exchange rate announced by the National Bank of Poland on the last business day of the calendar year preceding the year. submitting the application.

Therefore, let us point out that the cooperation agreement is an institution intended only for CIT taxpayers (and not PIT) and only for those who exceed a certain amount of income.

[alert-info] The purpose of concluding a cooperation agreement is to ensure that the taxpayer complies with the tax law in the conditions of transparency of actions taken and mutual trust and understanding between the tax authority and the taxpayer, taking into account the nature of the taxpayer's business. [/ alert-info]

Tax agreement - conclusion

As we have already indicated, a CIT taxpayer who has a cooperation agreement has the option to conclude a tax agreement under it.

In the light of Art. 20zb of the Tax Ordinance, the Head of the National Revenue Administration may conclude a written tax agreement with a taxpayer who is a party to a cooperation agreement in the scope covered by this agreement on:

  1. interpretation of tax law provisions;

  2. transfer pricing;

  3. the ineffectiveness of the application of the anti-tax avoidance clause;

  4. the amount of the tax liability in the corporate income tax forecast for the next tax year;

  5. other, necessary to ensure the proper implementation of the cooperation agreement.

At this point, it is worth emphasizing that the tax agreement is a voluntary form, which means that it may or may not be concluded as part of a cooperation agreement. It is also worth noting - the provision does not mention the procedure of applying by the taxpayer, which leads to the conclusion that such an agreement may be concluded both at the request of the taxpayer and the head of KAS.

The tax agreement concerns future elements of the facts that are not currently in dispute with the tax authorities. Thanks to the conclusion of the agreement, the taxpayer may obtain the position of the head of KAS on significant tax issues. This is also confirmed by the content of Art. 20zc of the Tax Ordinance, where we can read that the tax agreement may not be concluded in the scope of activities and events covered by pending tax proceedings, tax inspection, customs and tax inspection or proceedings before an administrative court, or when the matter in this respect has been resolved in essence in a decision or order of the tax authority.

Thus, as can be clearly seen, it is not possible to conclude a tax agreement in the framework of pending tax cases.

An agreement will be reached when the Head of KAS accepts the arrangements in terms of disputes and doubts. At the same time, it should be remembered that these are disputes that may arise in the future.

The catalog of these future tax matters is open, as long as it falls within the limits of the cooperation agreement concluded. Cited Art. 20zb of the Tax Ordinance indicates that the subject of a tax agreement may be:

  • interpretation of tax law provisions,

  • determination of transfer prices,

  • no validity of the application of the anti-tax avoidance clause,

  • the amount of the tax liability in the corporate income tax forecast for the next tax year.

However, it should be remembered that the subject of a tax agreement may also be another issue covered by the cooperation agreement.

As part of the cooperation agreement, the taxpayer may conclude a tax agreement with the head of KAS regarding future facts that may give rise to a dispute. The main purpose of the tax agreement is to resolve and clarify the dispute that has arisen.

Tax agreement - benefits for the taxpayer

The main benefit is the protection of the taxpayer against the negative consequences of changing the decision by the tax authorities, obtained under the concluded tax agreement.

Therefore, we can conclude that the taxpayer does not bear the tax consequences due to prior arrangements in accordance with the will of the head of KAS.

Therefore, if a taxpayer has a tax agreement concluded with the head of KAS regarding the interpretation of certain provisions, he cannot be liable for tax purposes if the head of the tax office interprets a given provision in a different way in relation to specific circumstances.

Therefore, we are dealing with a protection similar to that in the case of individual interpretations.

If a tax agreement is not concluded, the taxpayer may use classic forms of protection, e.g. apply for an individual interpretation, for a protective opinion, or may use appeals and complaints to administrative courts.

The conclusion of a tax agreement gives the taxpayer an advantage in the form of obtaining tax protection against the negative effects of changing the interpretation of regulations by the tax authorities.

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Tax agreement - termination

The tax agreement can be terminated by both parties. Its termination takes place on the day of submitting the termination notice in writing to the other party together with the justification. In the notice of termination, the taxpayer may indicate a term for termination of the agreement other than that resulting from the first sentence, preceding the date of the notice.

However, according to Art. 20 of the Tax Ordinance, the taxpayer may terminate the tax agreement at any time. On the other hand, the head of KAS can do it only in strictly defined cases, i.e. when:

  1. new facts or new evidence, existing on the date of conclusion of the agreement, unknown to the head of the National Revenue Administration or

  2. finds that the agreement is incorrect in the light of, in particular, the jurisprudence of the Constitutional Tribunal, the Court of Justice of the European Union, resolutions of the Supreme Administrative Court or general interpretations, or

  3. the cooperation agreement will be terminated.

The tax agreement may be terminated by the taxpayer at any time. However, if the head of KAS wants to terminate them, it is possible only in the cases specified in the Tax Ordinance.

The undoubted advantage of the concluded tax agreement is the obtained tax protection and the simplified mode of cooperation between the taxpayer and the tax office. This type of solution should be assessed positively. Unfortunately, the subjective scope of the tax agreement is a significant barrier, because only a small group of CIT taxpayers will be able to take advantage of it.