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The provisions forming part of the Polish Deal will reform many pieces of legislation, including the Tax Ordinance. The draft includes inter alia provisions on new legal institutions, such as investment agreements and enables the temporary seizure of real estate as part of enforcement proceedings.
Investment agreements
- This new legal institution will enable investors (i.e. entities which plan or conduct investments within the territory of the Republic of Poland) to become aware of the tax consequences of an investment.
- Investment agreements will be concluded between the Minister of Finance and a particular investor, provided that the value of the investment is at least PLN 100 million (PLN 50 million from 2025). Prior to concluding such contract, it will be possible to conduct a conciliation procedure.
- A group of investors may also submit an application to conclude an investment, especially a consortium, company, branch or representative office established in connection with the investment.
- The application may be submitted in English, and the agreement itself will be drawn up in Polish and English (the Polish version will be decisive).
- This new legal institution aims to increase certainty regarding the tax consequences of a planned investment.
- The scope of an investment agreement will depend upon the arrangements between the investor and the Minister of Finance. In principle, this institution is to “replace”:
- a prior unilateral pricing agreement
- a protective opinion
- binding excise information
- binding information about applicable VAT rates
- individual tax interpretations.
- An investment agreement will, during its term, be binding on both the investor and the tax authorities, provided that the subject of the agreement is not an activity which is declared to be an abuse of VAT law.
- The agreement will be valid a stated period, not exceeding 5 tax years.
- The conclusion of an investment agreement is subject to a fee. First, each investor must pay an initial fee of PLN 50,000 within 30 days from the date of submitting the application to conclude the agreement.
- After the investment agreement is concluded (similarly within 30 days), is necessary to pay the main fee of PLN 100,000 to 500,000. The fee amount depends inter alia upon the investment’s declared value and its complexity. The fee is payable within 30 days from the date of the contract.
- Records of entities that have concluded investment agreements will be public and available on the Ministry of Finance’s website.
Declaration corrections and fiscal penal liability
- The Polish Deal also introduces a long-awaited change regarding the consequences of submitting corrections to JPK files, meaning that the submission of a proper correction of the company’s books (the registered part of the JPK_VAT file) will be treated the same, insofar as avoiding fiscal criminal liability, as the submission of a corrected declaration.
- This benefit will not apply to either corrections submitted in relation to the registered part of a company’s books or declarations (not only the JKP_VAT file), if fiscal criminal proceedings were initiated before the correction was submitted .
Temporary seizure of movable property
- The Polish Order will also introduce a new legal institution to enforcement proceedings, namely the temporary seizure of movable property.
- Reforms of the Administration Enforcement Proceedings Act provide that if, in the course of a customs and fiscal inspection, the investigating officer finds that administrative enforcement proceedings are underway against the inspected entity, the officer will be entitled to temporarily seize movable property (e.g. machines, vehicles, equipment).
- After temporarily seizing the movable property, the Director of the customs and tax office will be entitled for a defined period, not exceeding 96 hours from the time of signing the relevant protocol, to dispose of the seized property.
- It will be possible to temporarily seize movable property if the writs of execution which authorise the enforcement concern cash receivables with a total value exceeding PLN 10,000 as the primary amount, not taking into account any interest for late payment, the costs of issuing demands for payment or any enforcement costs.
- When seizing the movable property, the Director of the customs and tax office will double-confirm the existence and amount of debt owed by the inspected entity.
- If it is confirmed that the debt still exists, and the tax authority considers that no one of the conditions stipulated in the new provisions apply, an order to temporarily seize the movable property will be issued and the temporary seizure will become an enforcement seizure. This decision is subject to appeal.
- If, conversely, the inspected entity settles the debt it owes, the authority will issue a decision refusing to approve the temporary seizure of the movable property.
- If, following the temporary seizure of movable property, the inspected entity disposes of such property, such disposal will be ineffective if the authority approves the temporary seizure of the movable property.
- It will not be possible to temporarily seize movable property if:
- the tax inspector provides the officer with evidence confirming that the debt has been paid, or written-off, or expired or that debt obligation does not actually exist, or that the performance date of the obligation has been delayed, or that it has been agreed to make payment in instalments (deferment),
- the movable property in question is excluded or exempt from administrative enforcement proceedings for the reasons described in the Enforcement Proceedings Act,
- the seizure would apply to money, perishable movable property or animals,
- the seizure would apply to movable property which has a value significantly greater than the amount required to satisfy the debt to which the enforcement proceedings relate.
