New Article 15e was added to the CIT Act as of 1 January 2018. The provision limits the possibility to include under tax deductible costs expenditure for the acquisition of intangible services as well as fees and amounts due for the use of specific rights (e.g. licences) up to 5% of EBITDA of a given taxpayer. The above mechanism does not apply to the costs of services, fees and amounts due, the sum total of which in a tax year  does not exceed PLN 3 million, and also to items listed in Article 15e paragraph 11, in particular costs directly connected with the manufacture or acquisition of goods or the provision of a service by a taxpayer. On 25 April 2018, the Ministry of Finance published explanations aimed at clarifying issues covered by the new regulations.

The services which may be limited under tax deductible costs are advisory, market research, advertising, management and control, data processing insurance, guarantee and surety services, and services of similar nature.

The limitation under discussion does not apply to: legal (including tax advice classified by the Ministry of Finance as legal advice), accounting, including financial audit, or personnel recruitment services. What is important, the limitation does not cover also the following:

- costs of services and rights which are directly connected with the manufacture or acquisition of goods or the provision of a service by a taxpayer,

- costs of services recharged by a taxpayer; services included here are those acquired in its own name but for the account of another related party (e.g. acquisition of a service by a shared service centre from a related party and further recharging to regional centres),

- costs of insurance services provided by domestic or foreign insurance or reinsurance undertakings,

- costs of services or rights which are provided within a tax capital group  or in relation to which the manner of calculating remuneration is indicated in a decision on finding the selection and application of the transfer pricing method between related parties to be correct (the so called prior pricing arrangements).

As regards definition of a vague term “performance of similar nature”, the Ministry of Finance refers to vast case law originated in connection with the obligation to collect withholding tax and payments on that account transferred abroad.

Although the explanations are useful, they will not clear taxpayer’s doubts connected with application of the new regulations, however, they may give some guidance as to their interpretation.

Agnieszka Jasica-Skalbmierska, Tax Advisor, ATA Tax Sp. z o.o.