Transfer pricing documentation – deadlines getting closer

by Łukasz Kluczka

19 October 2020 

Most of the entities obliged to prepare the Local File had to submit the information on transfer pricing (TPR form) and the statement on transfer pricing documentation by 31 December 2020. The deadlines set forth in the CIT Act have been extended under the so-called Shield 4.0 legislative package.

Statement and information on transfer pricing

In the statement on preparation of the Local File (in line with the CIT Act of 15 February 1992) the associated enterprise represents that:

• it has prepared the Local File;
• the transfer prices applied in the controlled transactions described in the Local File have been agreed between the parties on the terms that would have been agreed between independent enterprises.

The statement is to be signed by the entity's manager in the meaning of the Accounting Act, quoting his function. If several persons meet the criteria for entity’s manager or if it is impossible to indicate one, the statement should be filed and signed by each authorised representative. Pursuant to the CIT Act, the statement cannot be filed by an attorney or a statutory representative of the taxpayer. The statement can be filed by electronic means only, it must be signed or include a qualified electronic signature authenticated by the ePUAP trusted profile.

TPR form

Information on transfer pricing, i.e. TPR form, replaced the simplified CIT-TP and PIT-TP forms applicable in the previous years. Information on transfer pricing is also prepared in electronic version only and filed with the Head of the National Tax Administration. TPR form can be signed by a representative authorised to sign e-returns (UPL-1 form). In the TPR form the taxpayer must disclose information on controlled transactions whose values exceeded the statutory thresholds in the financial year (10 million zloty for transactions involving goods and financial transactions and 2 million zloty for transactions involving services and other transactions).

What is important, the TPR form must be filed also by entities exempt from the obligation to prepare the Local File under Article 11n of the CIT Act (i.e. mainly entities effecting controlled transactions with domestic entities which did not incur tax losses, did not pursue business activity in a Special Economic Zone and did not enjoy the exemptions for new investment projects).

What information to include in the TPR form

TPR form requires more information and more details that the previously applicable PIT/CIT-TP forms. The required information includes without limitation:

• the purpose of filing the form and the period for which it is being filed;
• identification details of the entity filing the TPR form and of the entity concerned;
• profitability ratio of the entity covered by the form;
• details on associated enterprises and controlled transactions made with them, such as the type of the transactions, interest rates (in the case of financial transactions), profit earned on a given controlled transaction;
• method of reviewing the transfer pricing, including without limitation: the type of the method, type of comparison (internal/external), financial ratio used by the taxpayer when reviewing the price, transfer pricing analysis result.

Information provided in the TPR form should comply with the data obtained as a result of carrying out a transfer pricing analysis (benchmarking study) by the taxpayer.

Shield 4.0 and reporting obligations

The so-called Anti-crisis Shield 4.0 legislation came into force on 24 June. One of the changes introduced by the act was that the deadlines for meeting TP reporting obligations were extended. Pursuant to the new laws, the deadlines for filing the statement and information on transfer pricing are as follows:

• 31 December 2020 – for entities whose fiscal year ended on 31 December 2019 at the latest;
• by the end of the twelfth month of the end of the fiscal year – for entities whose fiscal year ended after 31 December 2019.

The Polish Parliament is now processing changes to the currently applicable laws. The draft amended PIT and CIT Acts provide for, among others, a possibility of signing the statement on transfer pricing documentation by persons authorised to represent the taxpayer for the fiscal (financial) year or when the state of epidemic emergency or the state of epidemic is announced in Poland due to COVID-19. The change would make things significantly easier for management boards of companies as the statement could be signed on their behalf by just one authorised representative (currently, a lot of taxpayers must have the statement signed by all persons authorised to represent the entity). The legislative work is still underway so the draft act might change before it becomes law.

Sanctions for non-compliance

In addition to the assessment of an extra tax liability of 10 to 30% of the understated income or overstated loss, failure to file the information on transfer pricing and the statement on transfer pricing documentation results in severe fiscal and criminal sanctions for the entity’s manager.

The fine for a failure to file the statement or information on transfer pricing, filing them after the statutory deadline or providing false information in them may amount to as much as up to 720 day-fine units.
As taxpayers were allowed to follow the legislation in force before 1 January 2019 with respect to transactions made after 31 December 2017 (provided that their financial year was the same as the calendar year), for many entities 2020 may be the first year in which they will file the statement and the information on transfer pricing in the new form. The TPR form is much more complicated than the previous forms so it may be more complicated to fill it out.