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The Voivodship Administrative Court: You can apply for ruling concerning MDR

2020-06-05

The regulations concerning reporting of tax schemes ever since its entry into force have given rise to many doubts, and sometimes also controversies, among taxpayers. In order to simplify the performance of their duties, the Ministry of Finance has issued an extensive, over 100-page explanatory statement in this matter. Not only has it failed to solve all the problems that have been afflicting those responsible for tax settlements, but in some areas it has even created new ones.

Many taxpayers therefore have sought the salvage in receiving individual rulings, which would not only resolve their doubts, but also guarantee protection. However, the Head of the National Revenue Information Service persistently refuses to interpret MDR provisions, pointing out that they do not include norms that would result in rights or obligations of taxpayers, and only such could be subject to a tax ruling. Therefore, there was nothing left for the applicants to do, but to complain against such decisions to administrative courts.

The Voivodship Administrative Court in Gorzów Wielkopolski in the judgement of April 8, 2020 (I SA/Go 61/20) admitted that the applicants were right. In its application, a company requested information concerning the requirement to inform the accountant and the financial director acting in their supporting capacities about the tax scheme number. However, the Head of the National Revenue Information Service refused to initiate the proceedings. He recognized that the regulations regarding MDR were not substantive tax law. Finally, the company decided to lodge a complaint with the administrative court, alleging that in the case of receiving ruling it would have fulfilled the functions stipulated for that institution. First and foremost, it would have guaranteed the protection, and, moreover, it would have an important informative value. 

The Voivodship Administrative Court (WSA) agreed with the claimant and ruled that the Head of the National Revenue Information Service (KIS) had violated the law. In the court’s opinion, the authority should have issued a ruling, because the regulations on MDR are tax law regulations. They are contained in the Tax Code and thus in a tax statute. Narrowing this term in the issuing a private tax ruling is not justified by law. Besides, the statute clearly indicates which regulations cannot be subject to a tax ruling and the list does not include the regulations on reporting tax schemes.

At the same time, the court agreed with the authority that only substantive norms and not rules of procedure are subject to interpretation. However, the legal norms resulting from the provisions on MDR, including also the obligation to inform the advisors on the number of the tax scheme, are substantive in nature. After all, they regulate situations whose occurrence is connected with the creation of obligations on the part of certain entities. Violation of these obligations gives rise to criminal sanctions on the part of the obligated parties, and not e.g. a penalty in order, as is the case with infringement of procedural law. Therefore, the Head of the National Revenue Information Service (KIS) should issue private rulings concerning MDR.

Although this ruling should certainly be regarded as right and beneficial for the entities obliged to report their tax schemes, there is still no well-established case law in this respect. The Voivodship Administrative Court in Poznań took a different standpoint in a similar situation at the end of last year.

 

Wojciech Jasiński, Tax Consultant, ATA Tax Sp. z o.o.

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