Get free access to
While in the realm of transfer pricing, the year 2024 will not bring groundbreaking changes, taxpayers will still be required to adhere to the existing regulations concerning the documentation and reporting of transactions. Increased scrutiny and growing interest from tax authorities in this area demand particular attention and precision in documentation from entrepreneurs. Business owners must be prepared to meticulously document transactions with related entities to avoid potential issues during tax inspections.
This is particularly crucial in the context of international business operations, where transfer prices may be a subject of heightened interest for tax authorities.
Below we present the key information in the area of transfer pricing in Poland.
Entities shall be deemed to be related entities where, directly or indirectly, significant influence is exerted.
Significant influence according to the CIT Act means:
Direct or indirect holding of at least 25%:
The natural person’s actual ability to influence key economic decisions of the legal person or a flawed legal person
Marriage or kinship or affinity to the second degree
Entities deemed as related are required to prepare transfer pricing documentation if the volume of individual transaction exceeds the value:
Regardless of the prerequisites for the existence of relationships between entities, transfer pricing regulations may be applied to transactions, agreements or undertakings with entities from tax havens:
The general concept of the transfer pricing documentation has been maintained. The three levels of reporting consist of:
Local file + benchmarking study
Country by Country reporting
Represents local documentation containing details of transactions or other events between the Polish company and other group companies disclosed in the accounting books.
The taxpayer is obliged to prepare transfer pricing documentation in the case of perform a controlled transaction with a related entity, if its value exceeds the threshold indicated in the Act.*
The local file shall include in particular:
*PLN 2/10 millions
Benchmarking study is an analysis of the settlements between unrelated entities in transactions all over the market deemed as comparable to conditions established in controlled transactions. Benchmarking study is usually prepared based on specialized databases and market reports.
Comparability analysis’ goal is to prove that the terms and conditions under which the controlled transaction was executed comply with those which would have been determined by unrelated parties (transaction complies with arm’s length principle).
Entities obliged to prepare a TP documentation (local file + benchmarking study) are required to submit the statement that:
Under the changes effective January 1st, 2022, the statement is included in the TPR return.
The taxpayers who execute both transactions subject to the documentation obligation and transactions exempted under Art. 11n (1) of Polish CIT Law are obliged to submit TP-R report.
Master file should be prepared by taxpayers:
The master file shall include the following:
The new TPR return requires the taxpayers to provide a detailed overview of transfer pricing surrounding, including the financial indicators, ratios and information of a given entity based on financial statements.
TPR is an obligatory part for entities which conclude controlled related party transactions fulfilling the criteria for transfer pricing documentation (simply, as a rule: if you are obliged to prepare Local File – then you have to submit TPR), as well as (in a limited scope) entities qualifying for the so-called domestic exemption under which they are not obliged to prepare transfer pricing documentation.
The report on global allocation of income and tax within the group (required for groups in which the parent company consolidating the accounts is located in Poland). This document has to be filed by the holding company and if consolidated revenues of the group exceed EUR 750 mln.
The CBC-P is required to be submitted by each entity in the group to which the CbCR obligations apply. The CBC-P notification, under the new amended rules, can be submitted only electronically, with the deadline expiring within 3 months following the end of a tax year.
According to the current regulations, the following categories of transactions are not subject to Transfer Pricing documentation:
Concluded by related parties having their registered office, place of residence, seat or management on the territory of the Republic of Poland, as long as they:
Concluded between foreign fixed establishments of related entities located in the territory of the Republic of Poland, having their place of residence, registered office or management board in the territory of a Member State of the European Union or another state belonging to the European Economic Area other than the Republic of Poland
Concluded by a foreign fixed establishment, located in the territory of the Republic of Poland, of an entity having its place of residence, seat or management board in the territory of a European Union member state or another state belonging to the European Economic Area, other than the Republic of Poland, with an affiliated entity having its place of residence, seat or management board in the territory of the Republic of Poland
For which APA has been concluded
Whose value does not constitute revenue or tax-deductible cost on a permanent basis (exceptions – financial transactions, capital transactions, investment, fixed assets or intangible assets transactions)
If the relationship results only from a connection with the State Treasury or local government units
In which the price was determined by means of an open tender on the basis of the Public Procurement Law
Consisting of the attribution of income to a foreign permanent establishment situated in the territory of the Republic of Poland by non-residents, if the regulations of relevant international agreements to which the Republic of Poland is a party provide that such income may be taxed only in a State other than the Republic of Poland
Between companies forming a tax group
Consisting only in making a settlement between related parties of expenses incurred for the benefit of an unrelated party, as long as they,
Constituting low added-value services – if the conditions set forth in art. 11f of Polish CIT Law are met or
Concerning a loan, credit or bond issue – if the conditions specified in art.11g of Polish CIT Law are met.
Generally, the transfer pricing methods accepted by the tax authorities are based on the OECD Guidelines. These methods are:
CUP (Comparable Uncontrolled Price Method)
Resale Price Method
TNMM (Transactional Net Margin Method)
Profit Split Method
When selecting a price calculation method, taxpayer should make sure it is appropriate for the transaction. Since 2019, there is no obligation to use traditional methods before profit-sharing methods.
The new regulations also allow for the use of another method, including a valuation technique, if none of the five above methods can be used.
Since 1st January 2019, the so-called Safe Harbour institutions is introduced into Polish transfer pricing regulations. Safe harbour means that some of the transactions executed by the taxpayer will not be subject to estimation, as long as they are executed under the conditions indicated by the legislator.
These transactions are:
Safe harbour for low value-added services could be applied where the cost mark-up for these services has been determined on the basis of the cost plus or TNMM method and is equal to:
Moreover, the service provider does not have its place of residence, registered office or management in a tax haven and the recipient of the service should has a service price calculation including the type and amount of costs included in the, the manner of application and justification for the selection of allocation keys for all related parties who use the services and a description of the transaction, including an analysis of the functions, risks and assets.
The condition for the application of the safe harbour for loans, on the other hand, is that the interest rate of the loan is determined on the basis of the type of base interest rate and margin set out in the Minister of Finance notice. In addition, the loan agreement must not contain any provision for remuneration other than interest to be paid to the lender and the loan must not be concluded for a period exceeding 5 years.
The Ministry of Finance has decided that from January 1, 2024, for the purposes of safe harbour regulations for loan, credit and bond issues, the margin will be changed so that the maximum margin for borrowers will be 3.10 percentage points, while leaving the minimum margin for lenders at the current level of 2.20 percentage points.
It should be remembered that in order to benefit from the protection offered by the safe harbour for loan transactions, the total level of liabilities or receivables of the company with related parties cannot exceed PLN 20,000,000 or the equivalent of that amount, and the lender may not have a residence, registered office or management in a tax haven.
The regulations in force since 1st January 2022 have significantly modified the deadlines for the obligation to submit the TPR and to prepare the documentation itself. These obligations must be fulfilled until:
A separate TP statement will no longer be required.
In case of benchmarking study, the analysis should be updated at least once every 3 years (if the business circumstances change in a way affecting the analysis the benchmarking analysis should be reviewed earlier).
Moreover, according to the present regulations, the tax authorities may request the taxpayer to prepare documentation in respect of transactions / events even if the value does not exceed the limits, provided that the circumstances suggest that their value could have been underreported in order to avoid the documentation obligation. In that case, Transfer Pricing documentation should be submitted within 30 days of the request. This obligation does not apply to micro-entrepreneurs.
For the “standard” TP obligations (after exceeding the thresholds) taxpayers are obliged to present complete TP documentation within 14 days of the tax authorities’ request (previously : within 7 days).
The Country by Country reporting obligation applies to:
Polish entities, which simultaneously:
Entities not being the ultimate parent if there is no other entity designated to provide such information in the group if one of the following criteria are met:
According to the present tax regulations members of groups of entities will be obliged to:
The notification should be filed up to 3 months following the end of the reporting financial year of a group of entities. The new regulation* indicates what information should be included in the information about a group of entities.
*The Regulation of the Minister of Finance of 13 June 2017 on the detailed scope of data to be included in the information about a group of entities.
Currently, the APA is up to the Head of National Fiscal Administration (KAS) decision, which is a confirmation of the selection and application of a method for determining transaction prices between related parties.
The main advantage of obtaining such decision is elimination of the risk of challenging transfer price methodology (assuming that the taxpayer complied with the APA provisions) and protection from penal and fiscal sanctions for individuals responsible for tax settlements.
Additional benefit of an APA is the right to recognize as a deductible cost subject to limitation under Article 15e of Polish CIT Law (low added value services). From 2022 onwards, art. 15e of Polish CIT Law has been repealed and the benefits of APA highly reduced.
Some further rules regarding APA are as follows:
The fee is 1% of the value of the transaction covered by the APA limited by the following:
Renewal fees are half of the amount of the fee for the renewed APA.
*1 EUR = 4.3480 PLN (ex. rate 29/12/2023)
The legislation in force since 1 January 2019 has introduced new mechanisms available to tax authorities when estimating revenue.
Recharacterization and disregarding of the transaction may be applied under the opinion of the tax authorities, if in comparable circumstances, unrelated parties guided by economic rationality would not have entered into the controlled transaction concerned.
In assessing these facts, the tax authorities shall take into consideration the conditions that have been agreed between related parties and the fact that the conditions agreed between them do not allow the transfer price to be set at a level that would have been agreed by economically unrelated parties based on considerations of realistically available options.
The effect of disregarding of a transaction by the tax authorities could lead to assessing the income or loss of the taxpayer without taking into account the controlled transaction, while the effect of recharacterization could lead to assessing the income or loss of the taxpayer with respect to the relevant transaction (i.e. the one that would be made by unrelated entities).
Tax authorities cannot use the above tools just because of:
To meet the taxpayers’ expectations, the legislator pointed out that a taxpayer can recognize a transfer pricing adjustment by changing the amount of revenues or expenses if the following cumulative conditions are met:
The cooperation agreements have been introduced to the Polish tax system due to the Act on Resolving Double Taxation Disputes and Concluding of Advance Pricing Agreements of 14th November 2019.
The cooperation agreement is designed to ensure that a taxpayer complies with tax law in conditions of transparency of undertaken activities and mutual trust and understanding between the tax authorities and the taxpayer, taking into account the nature of the taxpayer’s business.
The agreement may be concluded by taxpayers with revenues of at least 50 million EUR. The main benefits of the agreement are:
The taxpayer, being a party to the cooperation agreement, has the opportunity to discuss (with the Head of the National Revenue Administration) important issues related to the tax settlements, such as:
At present, the sanctions for the use of non-market prices are as follows:
Furthermore, the Fiscal Penal Code provides a fine up to 720 daily rates per day in the following situations:
On the other hand, 240 daily rates per day are provided in the following situations: