Preparation and publishing of information about the tax strategy. A new obligation
As part of the program of tightening the tax system in Poland and increasing the transparency of tax settlements of the largest taxpayers of the income tax, on 01.01.2021 the obligation to prepare and publish information about the tax strategy was implemented.
According to the Ministry of Finance, due to the fact that the amending act does not provide for any specific transitional regulations, taxpayers will be required to prepare and publish information already for 2020, by 31.12.2021. This means that, in order not to be exposed to sanctions, taxpayers should prepare the first information for 2020 and then publish it by 31.12.2021.
A. WHICH ENTITIES ARE SUBJECT TO THE NEW OBLIGATION
1. tax capital groups (irrespective of the amount of revenue of the group),
2. taxpayers whose revenues exceed EUR 50 million in the tax year with regard to which the information is to be published.
The obligation does not apply to taxpayers that are parties to the cooperation agreement referred to in Article 20s sec.1 of the Tax Ordinance.
B. OBLIGATIONS IMPOSED ON TAXPAYERS
The taxpayers indicated in point A have to:
- prepare information about the tax strategy for the tax year and publish it on their website, by the end of the 12th month following the end of the tax year which the information relates to.
- provide the head of the tax office with information about the website address.
C. WHAT IS THE TAX STRATEGY
The regulations do not contain a definition of the term “tax strategy”. The legislator has indicated only the information that is to be made public as part of providing information about the tax strategy.
As an aid, when preparing the tax strategy, it is worth using the guidelines provided by the Ministry of Finance in the document Guidelines on the Framework of Internal Tax Supervision (hereinafter: “Guidelines”).
The Guidelines are not an obligatory document, but they can certainly be a helpful basis for preparing the tax strategy so that it will take into account the approach of the Ministry of Finance and its expectations. At the same time, it should be remembered that the scope of the tax strategy is not the same for all taxpayers, as it should be adjusted to the size and structure of a given enterprise.
As we read in the Guidelines, the tax strategy is a document that describes:
- vision and tax mission of a given taxpayer,
- tax goals (long-term), taking into account their impact on the achievement of the taxpayer’s business goals,
- the level of tax risk acceptable by the taxpayer and approach to reducing tax risk,
- the level of involvement of the management body in the decision-making process in the field of the so-called tax planning,
- accepted procedures for fulfilling obligations related to tax reporting,
- accepted procedures regarding the method of controlling the adherence to deadlines and correctness of submitting tax declarations,
- adopted strategies for payment of tax liabilities,
- presentation of the entity’s approach to business relations with entities: from the so-called tax havens, related entities.
The Guidelines also indicate that:
- the taxpayer should systematically assess the impact of business decisions on tax issues and of tax decisions on their consequences for the entity, including with the use of benchmarking, i.e. comparing its results over time intervals.
- implementation of the tax strategy should take place through appropriate processes allowing for its effective implementation, particularly in the field of education, trainings and development of appropriate procedures for activities inconsistent with the tax strategy adopted by the taxpayer.
It should also be remembered that the tax strategy is only an element of the internal system of fulfilling obligations resulting from tax regulations, which should function in every organization. It is not possible to create a tax strategy and information about it without inventorying the policies, procedures and rules of conduct regarding tax compliance that are already in force in the company, and in their absence – their preparation and implementation (tax compliance system).
D. WHAT IS THE INFORMATION ABOUT THE TAX STRATEGY
Currently, there is no statutory template for such information. The regulations (Article 27c sec. 2 of the Corporate Income Tax Act) contain only an exemplary catalogue of data that should be included in the information about the tax strategy (having regard to the nature, type and extent of the company’s activity).
The information about the tax strategy should contain in particular:
- information about the taxpayer’s processes and procedures for managing the execution of obligations arising from and ensuring compliance with tax regulations,
- information about the voluntary forms of cooperation with the National Tax Administration (e.g. a cooperation agreement),
- information about the fulfilment of tax obligations by the taxpayer in the territory of Poland, along with the information about the number of information on tax schemes (MDR), submitted to the Head of the National Tax Administration, broken down into taxes,
- information on transactions with related entities whose value exceeds 5% of the balance-sheet total of assets within the meaning of accounting regulations,
- information on restructuring actions planned or taken by the taxpayer,
- information on the taxpayer’s requests for: tax interpretations, binding information about rates and binding excise information,
- information about tax settlements made by the taxpayer in territories or states applying harmful tax competition (the so-called tax havens).
Information that constitutes trade, industrial, professional or production secret is exempt from the obligation.Consequently, such data should not be included in the information about the tax strategy.
E. PROCEDURE FOR ADOPTING THE TAX STRATEGY AND INFORMATION ABOUT THE TAX STRATEGY
The regulations do not specify whether – and if so, in what form – the taxpayer should adopt the final version of the tax strategy itself and of the information about the tax strategy, in the version that it intends to publish on its website.
For this reason, we recommend checking whether the articles of association provide for any regulations in this regard. Even if there are no provisions in the articles of association, it should be considered, taking into account the provisions of the Commercial Companies Code, that both documents should be adopted at least in the form of a resolution of the management board, and in some cases an approval by the shareholders’ meeting may be required.
The failure to provide the competent head of the tax office with information about the address of the website on which the information is published is subject to a financial penalty of up to PLN 250.000 imposed by the head of the tax office by way of an administrative decision.
If the taxpayer does not have its own website, the information shall be made available on the website belonging to the related entity.