Tax scheme - what is it and who is it about?
The tax scheme and the related reporting obligations constitute a completely new institution under Polish tax law. In principle, it is another mechanism aimed at tightening the tax system and preventing aggressive tax planning.
Therefore, let's consider what the reporting of accounting schemes is and who it concerns.
What is a tax scheme?
The provisions on reporting tax schemes can be found in Art. 86a-86o of the Tax Ordinance.
The statutory definition indicates that a tax scheme should be understood as an arrangement which is an activity or a set of related (planned) activities in which at least one party is a taxpayer or which have or may have an impact on the emergence or failure of a tax obligation. Additionally, it should be emphasized that the tax scheme must meet the main benefit criterion.
The criterion of the main benefit is deemed to be met if, on the basis of the existing circumstances and facts, it should be assumed that an entity acting reasonably and pursuing lawful objectives other than obtaining a tax advantage could reasonably choose a different course of action that would not be reasonably related to obtaining a tax advantage. expected or resulting from the implementation of the arrangement, and the tax benefit is the main or one of the main benefits that the entity expects to obtain from the performance of the arrangement. Approaching this issue from the practical side, it should be pointed out that the tax advantage is understood as such situations as failure, postponement in time, reduction of the tax liability, generation of a higher VAT refund or tax overpayment.
Speaking colloquially, a tax scheme is an arrangement or an action plan in the field of tax law, the purpose of which is to obtain a financial benefit as part of an action taken and has no economic justification.
It is also worth adding that the reporting obligation covers every tax, i.e. direct (PIT, CIT), indirect (VAT, excise) and local (PCC) taxes. Reporting includes a tax scheme assuming the occurrence of a tax benefit, the achievement of which is the main objective of the activity and which arose as a result of the application of an alternative course of action.
However, it should be emphasized that the mere fulfillment of the requirements specified by the definition of a tax scheme is not yet sufficient for the reporting obligation to arise. Such an obligation arises if we are dealing with a qualified user of the scheme.
The qualified user criterion is considered to be met if:
- the income or costs of the user or the value of the assets of this entity within the meaning of the accounting regulations, determined on the basis of the books of account, exceeded the equivalent of EUR 10 million in the preceding year or in the current financial year
- the shared or implemented arrangement concerns things or rights with a market value exceeding the equivalent of EUR 2.5 million
- the user is a related entity within the meaning of the provisions on income tax.
The reporting will concern the tax scheme used by the taxpayer meeting the criteria of a qualified user, i.e. the entity's revenues / costs / assets exceed the equivalent of EUR 10 million or the value of the subject of the arrangement does not exceed EUR 2.5 million.
Who is subject to the obligation to report schemes?
The analysis of the content of the regulations allows for the identification of three groups of entities required to report. It will therefore concern:
- a promoter (a natural person, legal person or organizational unit without legal personality, in particular a tax advisor, attorney, legal advisor, bank employee or other financial institution advising clients, also if he or she does not have a place of residence, registered office or management board in the territory of the country, which develops, offers, makes available, implements or manages the implementation of the arrangement);
- the user (a natural person, legal person or organizational unit without legal personality to whom the arrangement is made available, or where the arrangement is being implemented, or which is prepared to implement the arrangement, or which has performed an action to implement the arrangement);
- an auxiliary (natural person, legal person or organizational unit without legal personality, in particular a statutory auditor, notary public, person providing bookkeeping services, accountant or financial director, bank or other financial institution, as well as their employee who, while maintaining the generally required care in the activities performed, taking into account the professional nature of the activity, the area of specialization and the subject of the activities performed, undertook to provide, directly or through other persons, assistance, support or advice on the development, marketing, organization, provision for implementation or supervision of the implementation of the arrangement) .
Accounting office as a promoter in the field of the accounting scheme
Relating the above definition to the issue of reporting accounting patterns, it should be indicated that the accounting office may act either as a promoter or as a supporting agent.
The accounting office will act as a promoter when it independently develops and prepares a specific accounting scheme for the client, which will then be implemented. However, in a situation where the accounting office will provide only accounting services, it will act as an auxiliary. As you can see, the specific status depends on the degree of involvement of the accounting office in the taxpayer's activities.
At this point, it is worth pointing out that reporting the tax scheme is carried out once and has its own hierarchy. Firstly, this obligation rests with the promoter, and only then with the user or the supporting person.
The matter is obvious when the accounting office acts as the promoter (i.e. the entity creating the accounting scheme). In such a situation, the office is obliged to report the accounting scheme to the Head of KAS on the MDR-3 form. In terms of reporting accounting patterns, the accounting office acting as a promoter is obliged to report the scheme to the competent tax authority. Start a free 30-day trial period with no strings attached!
Accounting office as a support in the field of the accounting scheme
The mere fact of running an accounting office, which is important, does not automatically mean that you meet the supporting status and need to report. This issue depends on the awareness of running accounting services in terms of supporting the accounting scheme.
Let us analyze the provisions indicating the cases where the reporting obligation is shifted to the subordinate (art. 86d of the Tax Ordinance). The promoter or user ordering the supporting person to perform activities within the scope of his activity in relation to the tax scheme shall inform him in writing about the number of the tax scheme (NSP), attaching the confirmation of granting the NSP, no later than on the day preceding the performance of these activities.
If the helper:
- was not informed about the NSP tax scheme
- with due diligence generally required in the activities performed by him, taking into account the professional nature of his activity, the area of his specialization and the subject of his activities, he had or should have had doubts that the arrangement in relation to which he is supporting may constitute a tax scheme
he is obliged to immediately, but not later than within 5 working days from the date on which he had or should have had doubts, apply with a separate letter to the promoter or the user ordering the performance of activities to provide him with a written statement that the arrangement does not constitute a tax scheme.
Within this period, the supporting person is obliged to notify the Head of KAS about the occurrence of the situation, indicating the date on which he has doubts that the arrangement constitutes a tax scheme, and the number of entities to which he applied for a written statement that the arrangement is not a tax scheme.
If the assisting party has not been informed about the NSP of the tax scheme, he or she is obliged to provide the Head of the National Revenue Administration with information about the tax scheme, if he noticed or should have noticed that the arrangement in respect of which he / she is supporting constitutes a tax scheme, while maintaining the due diligence generally required in the activities by him, taking into account the professional nature of his activity, the area of his specialization and the subject of activities performed by him.
As a consequence of the above, the accounting office is not obliged to report if it receives a tax scheme number from the user or promoter.
If, however, the accounting office does not receive such a number, but:
- he will without doubt notice that an accounting scheme has been implemented at the taxpayer, he is obliged to report this situation to the Head of KAS;
- has doubts as to whether the reconciliation can be treated as an accounting scheme, asks the taxpayer to submit an appropriate statement and take a position on this issue, at the same time informing the Head of KAS about this fact. If the office then receives a declaration from the taxpayer that the arrangement is not a tax scheme, and then:
- it will dispel all doubts, then there is no reporting obligation;
- it will not dispel doubts and at the same time the accounting office notices or should notice that the reconciliation is a tax scheme, then it should take further steps related to reporting.
The reporting obligations regarding the accounting office as a supporting entity depend on the occurrence of certain factual circumstances, indicating a potential risk of the appearance of an accounting scheme, which the office must verify based on its knowledge, experience and skills. There is no doubt that the regulations governing the reporting of accounting schemes are very complicated. Accounting offices, in the light of the new regulations, must show increased vigilance in the field of accounting services towards transactions that may potentially be considered a tax scheme. The analysis of the content of the regulations shows that the only fully effective means of avoiding the need to report as an auxiliary is obtaining a tax scheme number (NSP) from the user or promoter.