On 15th July 2016, an amendment to the tax statute became effective introducing the clause against tax evasion. In accordance with the clause, tax evasion is an act committed first of all to gain a tax benefit, contrary to the idea of the regulation.
In such a situation, if the conduct is improper, such an act will not have the effect of gaining a tax benefit. The amendment recognizes the conduct as improper which would not be displayed by an entity acting reasonably and guided by lawful objectives other than gaining a tax benefit contrary to the subject and aim of the tax law. Within the meaning of the new regulations, a tax benefit is a non-occurrence of a chargeable event, postponement of an occurrence of a chargeable event or reduction in the amount thereof or an occurrence or overstatement of a tax loss as well as an occurrence of an overpayment or the right to a tax refund or an increase in the amount of overpayment or tax refund.
What is important, the clause does not apply to a tax benefit not exceeding PLN 100 K as well as the value added tax and charges and non-tax revenues. If it is found that these conditions have been met, the minister in charge of public finances will be able to make a decision about fixing or determining the right amount of tax liability for a given tax year or other settlement period or another decision concerning a taxpayer’s settlement for a specific period.
In addition, taxpayers having doubts about conformity of the tax optimization applied by them to the general clause will be able to request the minister of finance to give a so called security opinion (at a cost of PLN 20 K).
The purpose of the new regulation is not only to protect the Budget against activities of entities avoiding paying taxes on a large scale but also to protect competition in the market against unfair tax practices exceeding acceptable limits of the “optimization”.