Tax schemes may be subject to private tax rulings.
The Supreme Administrative Court in its ground-breaking judgement of January 28, 2021 (docket no. I FSK 1703/20) confirmed that the obligations connected with reporting tax schemes may be the subject of private tax rulings.
Until now, tax authorities have refused to issue individual tax rulings regarding the MDR regulations, arguing that these regulations are procedural in nature and as such cannot be the subject of tax rulings. A similar standpoint was presented by some administrative courts, e.g. the Voivodship Administrative Court (WSA) in Poznań in its judgement of December 5, 2019 (case no. I SA/Po 825/19). On the other hand, some rulings appeared recognising the substantive-legal character of the norms arising from the provisions on MDR and in consequence an obligation for the Head of the National Revenue Information Service to issue private tax rulings (e.g. judgment of the Voivodship Administrative Court (WSA) in Gorzów Wielkopolski of April 8, 2020, docket no. I SA/Go 61/20).
The case at issue concerned a company that had entered into a contract of carriage with a counterparty based in Cyprus. The company had doubts as to whether the act of not collecting withholding tax by way of the exemption provided for in the double tax treaty would fulfil the characteristics of a tax scheme and hence result in the obligation to file a tax scheme report. The Head of the National Revenue Information Service (KIS) issued a decision refusing to initiate proceedings arguing that the issue presented in the application for a private ruling did not concern substantive law. The position of the authority was then confirmed by the Voivodship Administrative Court (WSA) in Cracow in the judgement of May 28, 2020 (docket no. I SA/Kr 1419/19). Ultimately, the company filed an appeal against the judgment with the Supreme Administrative Court (NSA), which overruled both the judgment and decision of the Head of the KIS.
In grounds for the sentence, the Supreme Administrative Court (NSA) indicated that provisions included in Division III Chapter 11a of the Tax Code are not uniform in nature and include both substantive and procedural provisions – including those that cannot be the subject of an application for a private tax ruling. However, the provisions regarding the obligation to file information on a tax scheme should be regarded as substantive provisions, subject to interpretation by the Head of the KIS.
In the Court’s view, the regulations in question imposed duties of an analytical and informative nature, performing a function similar to the information submitted in the form of tax returns and declarations. As a result, they contribute, as it were, to the regulations included in specific substantive tax statutes, which directly determine the content and scope of tax obligations. Such a qualification is also supported by the fact that the regulations concerning reporting tax schemes are included in Division III of the Tax Code, dedicated to tax obligations. Not without significance is also the lack of explicit exclusion of the possibility to issue individual tax rulings in relation to the obligations concerning MDR reporting as well as the fact that a violation of these obligations results in criminal sanctions for the parties concerned. The court also stressed that the purpose of the institution of tax rulings is to ensure legal security to the taxpayer. Consequently, it is not permissible to limit its application implicitly, without an express indication by the legislator.
The judgment in question is the first ruling of the Supreme Administrative Court (NSA) concerning the issuance of private tax rulings on reporting tax schemes. It is to be hoped that the ruling will serve to change the negative approach of tax authorities and to unify the hitherto divergent lines of rulings.
Anna Skórska, Tax Consultant, ATA Tax Sp. z o.o.
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