Another revolution in transfer pricing starting from 1 January 2019

by Marcin Jeliński, Natalia Księżarek

7 December 2018 

On 14 November 2018, the Polish President signed the statute amending the Personal Income Tax Act (the PIT Act), the Corporate Income Tax Act (the CIT Act), the Tax Act and some other acts. The amended laws enter into force on 1 January 2019.

The new regulations are going to usher in far-reaching changes in transfer pricing laws. The most important ones include:

1. new thresholds triggering the obligation to prepare transfer pricing documentation – i.e. higher documentation thresholds for transactions:

• PLN 10,000,000 net (sale/purchase of goods, assets, obtaining/granting debt financing, surety or guarantee);
• PLN 2,000,000 net (sale/purchase of goods, intangible assets, rental, lease, licence);
• PLN 100,000 for transactions with entities established in the so-called tax havens.

2. no obligation to document transactions between domestic associated enterprises if the taxable persons do not suffer a tax loss and if they do not enjoy the tax exemption in relation to income earned from a business activity pursued in a special economic zone (SEZ) specified in the decision on state aid referred to in the New Investment Support Act;

3. new components of TP documentation – the detailed scope of the Local File, the benchmarking study and the Master File will be described in implementing regulations;

4. the Master File will have to be prepared only by taxable persons who belong to a group whose consolidated revenue exceeded PLN 200,000,000 (or its equivalent in another currency) in the previous fiscal year. The deadline for the preparation of transfer pricing documentation is going to be extended to 12 months after the end of the fiscal year. The new regulations allow the Master File to be submitted in English. Tax authorities will have the right to demand translation into Polish within 30 days;

5. simplified solutions for loans and low value-added services – a pre-defined mark-up or the percentage base and the conditions of the transaction to be met to be sure of the arm's length nature of the price without the need to prepare transfer pricing documentation (the so-called safe harbours);

6. an option to either refuse to recognise a transaction or to recharacterise it – i.e. the authorities may conclude that independent entities would not have effected the transaction or would have made another transaction or carried out another activity;

7. a change in transfer pricing adjustments, i.e. transfer pricing adjustments will be
a revenue or a tax-deductible cost (as the case may be) and will be disclosed in the year it concerns, subject to meeting the conditions provided for in the act, among other things, a bilateral adjustment, an adjustment deadline;

8. deadlines for submitting a statement saying that the Local File has been prepared and information on transfer pricing set to the end of the 9th month of the fiscal year-end;

9. CIT-TP/PIT-TP forms replaced by a new form which includes information on transfer pricing (TP-R form).
At the same time, the Ministry of Finance has published draft transfer pricing regulations concerning PIT and CIT. It also plans to issue official tax guidance concerning the new regulations.

Pursuant to transitional provisions, when drawing up TP documentation for the fiscal year commencing after 31 December 2017 taxable persons may apply the old provisions which they used to prepare TP documentation for the fiscal year commencing after 31 December 2016, or the amended provisions. The selected provisions must be consistently applied to all controlled transactions in the period.

In the context of these legislative changes, it is best to check which regulations are better for the company. If you plan any adjustments to transfer prices, we recommend checking their implications under the new rules.