Polish Deal in transfer pricing practice

by Agata Bejda

12 October 2021 

For several months now, business representatives and tax advisers have kept a watchful eye over machinations of the Polish lawmakers. Fundamental changes proposed by the legislator to the Polish tax system, known as the Polish Deal, have been commented on widely. That is because the proposed modifications are very extensive both in terms of scope and number.

Below you will find the Polish Deal’s most important implications on transfer pricing documentation obligations.

Polish Deal and transfer pricing – deadlines

It is optimistic that the time for fulfilling the transfer pricing obligations has been extended. So far the deadline for preparing transfer pricing documentation and filing the transfer pricing report (TPR form) has expired at the end of the ninth month after the end of the taxpayer's tax year. The Polish Deal provides for different deadlines for the above obligations. The amendment emphasises that the data disclosed in the transfer pricing report should follow from the local file prepared earlier and the underlying transfer pricing analyses.

The Polish Deal introduces the following deadlines for fulfilling the obligations:

• the local file should be prepared by the end of the 10th month after the end of the tax year;
• the transfer pricing report should be filed by the end of the 11th month after the end of the tax year.

Polish Deal and transfer pricing – statement

So far entities obliged to prepare transfer pricing documentation also have been required (apart from preparing the documentation itself) to file two separate documents:

• a statement on preparation of transfer pricing documentation and a declaration that prices were agreed on terms that would have been agreed between independent enterprises;
• a transfer pricing report (TPR form).

The Polish Deal provides for a significant change in this respect as it lifts the obligation to file a separate statement. The statement will be included in the transfer pricing report and will be part of the TPR form. As a result, the scope of obligations will not change but the filing procedure will be simplified.

Transfer pricing report (TPR form)

The role of electronic reporting in the Polish system is constantly growing. The relatively new obligation to file the transfer pricing report on the TPR form has become a vital source of information for tax authorities and the scope of information reported on that form is constantly expanding. In addition, the Polish Deal changes the rights to sign the report.

The future transfer pricing report (TPR) may be signed by:

• a natural person – if an associated enterprise is a natural person;
• a person authorised by a foreign enterprise to represent it in a branch office – if it is a foreign associated enterprise with a branch office in Poland;
• entity's manager as defined in the Accounting Act.

If the entity is managed by a collective body, the report may be signed by a designated body member. Responsibility for failure to file the report rests with the entire body, even if one person has been appointed to sign it.

The transfer pricing report cannot be signed by an authorised representative (attorney). Only attorneys-at-law, tax advisers and statutory auditors will be authorised to sign the report.

Limited documentation obligation

So far the local file has not been required for transactions entered into by associated enterprises registered in Poland, if none of those entities incurred a tax loss or met other conditions listed in the statute.

The Polish Deal provides for a longer list of transactions that are not subject to the documentation obligation. No documentation obligation will also apply to transactions carried out by permanent establishments of foreign entities located in Poland. This will apply both to transactions between Polish permanent establishments of foreign entities and between a permanent establishment and a Polish entity.

In addition, there will be no obligation to prepare documentation for transactions involving only a recharge of expenses incurred for an independent enterprise, provided that other conditions (including immediate settlement of accounts, no mark-up on costs transferred, no involvement of entities registered in countries applying harmful tax competition) are met.

Polish Deal and penalties

The changes to transfer pricing practice are mostly beneficial and facilitate the fulfilment of documentation obligations. However, the Polish Deal also introduces something less favourable to taxpayers, that is penalties under fiscal crime law for failure to comply with documentation obligations.

The actions liable to penalties include:

• failure to prepare documentation, preparation of documentation that is inconsistent with the facts, failure to add a master file – a fine of up to 720 day-fine units;
• late preparation of documentation – fine up to 240 day-fine units.

Due to a large number of planned changes, we have presented here only selected issues related to transfer pricing. We will be glad to discuss with you in detail the implications of the Polish Deal on documentation obligations in your companies.