Przegląd Podatkowy - Nr 12/2018 [332]

TOPIC OF THE MONTH

Robert Gwiazdowski, Dariusz Żurawski

• On inherited real property (not) being liable to personal income tax

p. 12

TAX ADVISERS’ VOICE

Dariusz M. Malinowski
Certifi cate of tax residency: duties of the domestic tax remitter
p. 3

EXPERTS’ OPINIONS ON TAXES
p. 6

TAX AUTHORITIES’ PRACTICE
p. 10

TRANSFER PRICING

Tomasz Kolanowski, Krzysztof Winiarski

• What can administrative courts do in the aspect of transfer prices?

p. 21

Adam Studziński, Michał Nowacki

• 'Negotiations' during inspections relating to transfer prices?

p. 28

ENFORCEMENT PROCEEDINGS

Przemysław Ostojski

• Requesting information from the obligor in the context of personal data protection in administrative enforcement proceedings

p. 32

COURTS’ DECISIONS

Alicja Sarna

• Suspension of a limitation period: what must a taxpayer be notified of?

p. 39

Administrative Courts’ rulings: review
p. 45

CoJ rulings: review
p. 50

Case law
p. 57

NEWS FROM BRUSSELS
p. 63

Subscription
p. 64

Robert Gwiazdowski, Dariusz Żurawski
On inherited real property (not) being liable to personal income tax
Unquestioningly, the Sejm approved the Finance Ministry’s bill with amendments to the Tax Ordinance, the Corporate Income Tax Act, and the Personal Income Tax Act. One of the amendments, described as advantageous for heirs, consists in exemption from income tax of sale of inherited property before the lapse of fi ve years from acquisition of such property.
This article is a polemic with the view – dominant in tax law literature and supported by case law of the Supreme Administrative Court – that such sale is in any circumstances liable to such tax, which view underpinned the amendment, allegedly ‘advantageous for taxpayers’. We put forward the following statements: (1) sale of any assets acquired by inheritance or gift at a price corresponding to their value determined in accordance with the Act of 28 July 1983 on Inheritance and Gifts Tax (IGTA) has never been liable to personal income tax, therefore no tax is chargeable on the sale of property pursuant to Art. 2(1) of the Act of 26 July 1991 on Personal Income Tax (PITA) in conjunction with Art. 2, 30, 32 and 64 of the Polish Constitution of 2 April 1997, and in case of housing property also pursuant to Art. 75 of the Constitution; (2) a literal interpretation of Art. 10(1)(8), Art. 22(6d) and Art. 30e PITA without taking note of the Act on Inheritance and Gifts Tax and the Constitution leads to the conclusion about a fi ctitious nature of Art. 4a IGTA, which provides for tax exemption of acquisition of title to things or property rights by the next-of-kin of the testator or donor – including the spouse, descendants, ascendants, stepchildren, siblings, stepfather and stepmother – due to charging for the second time income tax on income that was fi rst liable to inheritance and gifts tax, from which the legislator exempted such persons; moreover, this interpretation exorbitantly increases the amount of tax payable by heirs and donees from other inheritance tax groups. To prove the statements, we analyse the origin of the provisions in question, the statement of reasons for their introduction, the history of their amendments and the declared reasons for such amendments (with references to teleological and quasi-authentic interpretation) and try to present our own interpretation based on direct application of provisions of the Constitution.

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Tomasz Kolanowski, Krzysztof Winiarski
What can administrative courts do in the aspect of transfer prices?
Regulations regarding transfer prices are aimed to prevent tax avoidance in relation to transactions conducted by related entities. These regulations are included in the acts regarding corporate income tax, personal income tax, and VAT. This article is an attempt to explain to what extent administrative courts have the right to review decisions issued by tax authorities applying the provisions on transfer prices. The limitations result from the Act on Proceedings before Administrative Courts.

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Adam Studziński, Michał Nowacki
‘Negotiations’ during inspections relating to transfer prices?
It is a commonly accepted view that Polish tax provisions do not permit tax authorities to negotiate with taxpayers during tax inspections or fi scal and customs inspections in order to end the inspection at this stage, in a consensual manner, with a solution acceptable to both the taxpayer and the tax authority. According to the authors, even today there are provisions that not only permit, but even require the tax authority to conduct inspections in such a way. This procedure is particularly desirable in case of inspections relating to transfer prices, where there arise a broad range of questions that can and should be the object of discussions, arguments in which parties try to persuade each other, and mutual concessions, all with the aim of reaching a compromise.

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Przemysław Ostojski
ŻRequesting information from the obligor in the context of personal data protection in administrative enforcement proceedings
This article concerns the relationship between right of the creditor and the enforcement authority resulting from Art. 36(1) of the Act of 17 June 1966 on Enforcement Proceedings in Administration and the protection of personal data, guaranteed in constitutional provisions and the General Data Protection Regulation. Particular doubts surround the question of permissibility of requesting the obligor to provide, under the aforementioned procedure, any so-called sensitive data. Determining the limits of permissibility of requesting information enables the obligor to identify the grounds for refusal to provide his/her personal data.

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Alicja Sarna
Suspension of a limitation period: what must a taxpayer be notifi ed of?
The resolution this commentary concerns discusses the requirements pertaining to a notifi cation sent to a taxpayer about suspension of the period of limitation due to initiation of fi scal penal proceedings in order to effectively suspend the limitation period. The Supreme Administrative Court held that simply invoking Art. 70(6)(1) of the Tax Ordinance, the article providing for suspension the limitation period – instead of presenting detailed information on the fi scal penal proceedings (the reasons for initiation, the scope, etc.) – is suffi cient to extend the limitation period. The author does not share this standpoint. The resolution does not resolve all the questions relating to the formal requirements pertaining to the said notifi cation and the infl uence of fi scal penal proceedings on the limitation period of tax liabilities.

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