Michał Gosek

Tax adviser (Poland)
Associate Partner
Phone: +48 61 624 49 39

We would like to draw you attention to the latest Act of 7 May 2016 amending the Polish Tax Act and certain other acts (Journal of Laws of 2016, item 846, the "Amending Act"), which the President signed into law on 7 June 2016 and which was published in the Journal of Laws on 14 June 2016.

One of the novelties introduced by the lawmakers is the anti-tax avoidance clause. The purpose of this clause is to prevent fictitious transactions that taxpayers carry out primarily to achieve tax advantages. Practically speaking, this means transactions which are hardly justifiable from an economic or business point of view. 

The Amending Act lists sample features that suggest a fictitious character of the taxpayers' actions, such as unreasonable split of transactions, involvement of intermediaries where there is no economic or business reason for doing so, transaction structuring leading to an identical or similar situation as before the transaction, structures cancelling or offsetting each other, or high risks incommensurate to potential benefits other than tax advantages. 

The Amending Act also defines what a tax advantage means, namely avoidance, deferral or reduction of a tax liability; creation or overstatement of a tax loss; creation or overstatement of a tax overpayment or a reclaimed amount. The legislation sets a threshold (PLN 100,000) which, if exceeded, entitles the tax authorities to invoke the anti-tax avoidance clause. 

Reading the Amending Act one cannot help but conclude that the practical application of the clause will boil down to the tax authorities claiming that a transaction has different tax consequences than the taxpayer intended or that it is legally void.

However, taxpayers will be able to apply to the minister in charge of public finance for a so-called business clearance.

According to the Amending Act the anti-tax avoidance clause will also apply to tax consequences arising after its entry into force even if the transactions that brought about those consequences took place before the clause's effective date.

The vacatio legis (the period between enactment and effective date) is very short – the anti-tax avoidance clause will come into force just 30 days from the publication date. In this context, we believe it would be worthwhile reviewing the tax avoidance solutions in your company or modify your contemplated business ventures. To this end, the economic and business circumstances of your transactions need to be thoroughly examined.

We will be happy to help you assess the implications of this new piece of legislation for your completed or planned undertakings. Rödl & Partner’s consultants remain at your service and will gladly represent your interests during tax proceedings. Our tax advisers in Gdansk, Gliwice, Cracow, Poznan, Warsaw and Wroclaw are at your service in this respect. We are also at your service to answer any other questions you may have with respect to tax advisory services in Poland.