Review of 2019 transfer pricing documentation of Polish entities – why it’s worth it

by Aleksandra Galczak

16 April 2021

Further modifications to Polish transfer pricing regulations were introduced on 1 January 2019. The regulations were adjusted to the OECD guidelines both in terms of the concept of documentation obligations and in terms of the elements that a local and master file should contain.

Implications of the changes

The changes have induced multinational groups to centralize the task of fulfilling their reporting obligations by allocating it to one entity responsible for preparing the documentation for all group entities.

Rödl & Partner experts recommend that Polish taxpayers review transactions carried out in 2019 for their compliance with documentation obligations, including  transactions carried out both with associated enterprises and with entities from tax havens. What is worth reviewing, above all, is the completeness of documented transactions and the fulfilment of other reporting obligations (submission to the tax authorities of the transfer pricing report, the TP-R form, and a statement confirming that transfer pricing documentation has been prepared).

In addition to traditional transfer pricing documentation, Polish taxpayers are also obliged to:

• prepare a transfer pricing information return, which is a kind of a declaration summarising their transactions entered into with associated enterprises; and
• file a statement to confirm that transfer pricing documentation has been prepared and the transfer prices applied in the controlled transactions described in the Local File have been set between the parties on the terms that would have been agreed between independent entities.

The statutory deadline for fulfilling said obligations is the end of the 9th month following the end of the tax year. Due to the epidemic situation, the deadline for fulfilling said obligations for 2019 was postponed by 3 months and expired at the end of December 2020 (this applies to taxpayers whose tax year coincides with the calendar year).

Sanctions for non-arm’s length pricing

Sanctions for non-arm’s length pricing effective from 1 January 2019 are:

1. basic rate – 10 per cent of the value of the understated income or overstated tax loss;
2. increased rate of 20 per cent

• if the basis for calculating additional tax liabilities exceeds 15 million zloty;
• if the taxpayer fails to submit transfer pricing documentation (however, if it delivers complete TP documentation within the period specified by tax authorities, no longer than 14 days, failure to submit the documentation will not apply);

3. increased rate of 30 per cent – joint fulfilment of the conditions specified above.

Other cases subject to penalties

In addition, the Fiscal Crime Code specifies a fine of up to 720 day-fine units in the following cases:

• failure to submit a statement on having transfer pricing documentation ready within the statutory deadline, submission of an untrue statement  or failure to submit a statement;
• failure to submit a TP-R information return within the statutory deadline, submission of an untrue TP-R return or failure to submit a TP-R return.

Review of fulfilled obligations for 2019

As penalties are severe and transfer pricing audits are becoming more frequent, it is advisable to review the fulfilled obligations imposed by transfer pricing regulations for 2019. This will also allow you to avoid possible errors in the following years.

The review of transfer pricing obligations for 2019 carried out by Rödl & Partner experts includes, among others:

1. review of identified transactions to be documented;
2. review of the available transfer pricing documentation, including a thorough formal review for compliance with the CIT Act;
3. review of the local transfer pricing analyses attached to the TP documentation, including in particular the adequacy of the selected transfer pricing methods, the completeness of the selection process of a comparable group and the correctness and completeness of the available appendices;
4. review of the submitted TP-R return and statement;
5. review of the fulfilment of other obligations:
   

• verification of the obligation to have a master file;
• review of the available master file;
• verification of country-by-country reporting obligations.